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  • Statewatch bulletin, Vol 6 no 3, May-June 1996

    “Statewatch applications split the European Council”

    Three appeals made by Statewatch editor Tony Bunyan made against the refusal to release documents concerning the Council of Justice and Home Affairs Ministers has produced major divisions in the European Council over the issue of secrecy. The first case, reported in Statewatch vol 6 no 2, March-April 1996, saw three governments – Denmark, Sweden and Finland – making public Declarations in support of greater openness and two governments voting against the proposed reply – Denmark and the UK. The second, reported below, similarly saw Denmark and Sweden again calling for more documents to be released. Four countries voted against the proposed response by the Council to an appeal – Denmark, Sweden, France and Portugal. The French vote against the proposed response cannot be taken as one of support for openness in the light of its later attack on … but rather that too many documents were being released. The third case on the Minutes of the K4 Committee, reported on page 1 and below, saw seven countries lining up in favour of greater openness and against a obviously absurd interpretation of the rules of access to documents.

    The K4 case

    On 27 February 1996 a request was made for copies of the minutes of the K4 Committee covering 14 meetings between 3/4 February 1994 and 12/13 September 1995. On 3 April the Council General Secretariat replied by sending copies of 5 sets of Minutes. The letter stated that, under Article 3(2) of the Decision of 31.12.93:

    “Your request in this regard is a repeat application which relates as well to a very large number of documents. The General Secretariat has however found a fair solution…”

    On 17 April Tony Bunyan wrote back to the Council saying “I was a little surprised” by the reply and that his request was not a “repeat application” as “No previous application has requested the information asked for in my letter of 27 February.” Nor was the request within the Council Decision’s definition of “very large documents” – which clearly referred to documents with a large number of pages – not to “a very large NUMBER of documents” as stated by the Council. As neither of these grounds held the Council could not apply a “fair solution” by only providing 5 of the 14 documents requested. The letter to the General Secretariat asked them to reconsider its response or “reluctantly, I wish to make a confirmatory application…” Mr Bersani, the Italian Minister for Industry and Craft Trades, replied for the Council on 23 May 1996 saying that the Council of the European Union endorsed the General Secretariat’s response and:

    “is of the opinion that your request is a repeat application and that a fair solution was given to your request… your request for access to the Minutes of meetings of the K.4 Committee between 3 November 1993 until 12 and 13 September 1995 constitutes a repeat application similar to those which you have presented in the past.”

    The request for the Minutes of the K4 Committee was argued to be “similar” to a previous request for copies of the Agendas. The letter concedes the issue of a “very large number of documents” not being the same as “very large documents”. What the letter did not say was that the Council had split down the middle and only voted, both in COREPER and at the Industry Council of Ministers on 20 May, by 8 votes to 7 in favour of this response. The Danish and Swedish delegation made a public Declaration fully supporting Tony Bunyan’s case that he had not made a repeat application and that “repeat” meant the same applicant applying for the same document on different occasions.

    The Finnish delegation made a similar declaration. The extraordinary public Declaration from France and Belgium is reproduced in the box opposite. It is clearly referring not just to this specific application but to “applications” in the plural and marks out their strong opposition to ending the secrecy surrounding the meetings of the Justice and Home Affairs Council.

    What the Minutes say

    Like most Minutes of meeting the five set supplied, covering the period February to September 1995, are pretty uninteresting. They do indicate the progress of initiatives known to be underway. However, amongst the bland recording of views and member states’ positions there are a few interesting gems. They confirmed that there is a “Convention parallel to the Dublin Convention” awaiting the final ratification of the main Convention (the Convention introduces the “one-stop” rule for asylum-seekers who can only apply to one EU country). This “parallel Convention” will be open for signature by non-EU countries – and is especially directed at the “buffer states” in central and eastern Europe and the Magreb countries in north Africa. The interface with the Schengen Agreement and the EU is openly referred to. Referring to the draft Convention on the European Information System (EIS) a number of delegations felt a discussion at the Council of Ministers would be premature as there was “the importance of first gaining experience with the practical application, in the near future, of the information system under the Schengen Convention.” The Schengen Information System (SIS) will become the EIS, covering the whole EU, when the Convention on External Frontiers is agreed. In May 1995 there was a discussion on the need for a ministerial level “Troika” meeting with Norway “to examine problems concerning movement of persons” and “drugs, organised crime and terrorism” in view of Norway’s membership of the Nordic Union. The “Troika” is made up of the countries comprising the last, present, and next Presidencies of the EU; the “Troika” holds meetings after each Council of Justice and Home Affairs Ministers with Norway, Switzerland and Morocco (previously known as “Friends of Trevi” meetings). Also in May 1995 there was a discussion over the status of Joint Actions adopted under Article K.3.2 of the Treaty of European Union. Most member states agreed with the view presented by the Council’s Legal Service that a: “Joint Action adopted by the Council on the basis of Article K.3.2.b of the TEU is obligatory in law and that the extent of the obligation on the Member States depends on the content and the terms of each Joint Action.” The minutes state that: “Only the United Kingdom and Portugal were not fully in agreement with this approach.” They argued that Joint Actions were not automatically “of a legally binding nature” and whether or not it was binding “depended on the actual text.” Only five Joint Actions have so far been adopted one, uncontentious, on the movement of school-children (1994), on the Europol Drugs Unit (March, 1995), on racism and xenophobia (June 1995; where the UK added a Declaration), on Financing the “third pillar” (June 1995) and on the exchange of Liaison Magistrates (March, 1996). One on combating “illegal” migrants resident in the EU, proposed by the French Presidency, had to be downgraded to a non-binding Recommendation. The extent of cooperation between the EU and the USA on “third pillar” issues is clearly signalled (see Statewatch, vol 6 no 1, for details of the EU-US Joint Action Plan). Back in March 1995 the Netherlands delegation supported by other delegations “called for a list to be drawn up of the fora in which the countries of the European Union and the United States cooperated.” In September 1995 the K4 Committee was preparing for EU-US Summit on 3 December in Madrid which agreed the “New Transatlantic Agenda” and the Joint EU-US Action Plan. Before this September meeting were “a list of US suggestions in the Third Pillar area” and an EU paper. One of these proposals, the “feasibility” of which had to be “checked” was: “US accession to Council of Europe Conventions.” France’s opposition to the EU becoming involved in the FBI’s Police Academy in Budapest is minuted in September 1995 as view their view that “use could be made of existing frameworks (third country contacts) rather than the transatlantic dialogue.” France’s opposition stopped the Council of Ministers agreeing in Luxembourg on 4 June 1996 to EU participation in the Academy.

    CASE 2

    On 15 February Tony Bunyan applied for copies of the reports considered by the Council of Justice and Home Affairs Ministers held on 9-10 March 1995 in Brussels and for reports from the meeting of the K4 Committee at its meeting on 3-4 February 1994. The General-Secretariat of the Council replied on 15 March granting access to 17 of the 40 reports requested. He made a confirmatory application on 2 April requesting access to the 23 refused reports. Mr W Luchetti, the Italian Minister for Agriculture, Food and Forest Resources, replied for the Council Presidency on 2 May 1996. This letter granted access to a further 7 reports but refused access to 16. On this occasion Denmark, Sweden, France and Portugal voted against the reply sent. The French delegation vote against the proposed response cannot, in the light of their statement of 20 May (above), be taken to mean a vote in favour of greater openness. In this application 40 reports were applied for and initially access was given to 17 and refused for 23. After the confirmatory application access was given to a further 7 documents. Overall access was granted to 24 documents and refused to 16. Of the 16 refused documents only 2 were classified as “Confidential” the other 14 were simply “Limite” or “Restreint”. The designation “LimitT” is not even classified.

    Changes in application of the rules

    The applications by Statewatch’s editor have so far contributed to three changes in the way the Council interprets the rules of public access to documents. The Code of access has been in place since December 1993 but it was not until 27 February this year that the Council published a scale of charges to be made to applicants for documents. This is intended to deter people asking for too many documents but at least it is straightforward. The second change is signalled in the letter from Mr Bersani, for the European Union Presidency, on …… The Council does not defend the practice of arbitrarily deciding what to send an applicant under what is called a “fair solution” on the grounds that they have asked for “a very large number of documents” when the Council’s rules refer to “a very large document” (clearly referring to a document of more than say 30 pages). The third and most important change appears to have occurred between 7 June and 13 June. Tony Bunyan received a letter sent on 7 June saying – for the third time – he could have access to a set of documents but would have to “consult” them in Brussels and he would be charged for the photocopies. At a seminar on “Openness and Transparency” organised by the Socialist Group of MEPs held in the European Parliament on 13 June Mr Brunmayr announced that applicants would not longer have to come to Brussels to “consult” documents but could instead be sent them with a bill. The use of the provision in the Code of access allowing the Council to require an applicant to go to Brussels to get documents they had been given access to was intended to “deter” people asking for a large number of documents. When Tony Bunyan went, on two occasions, to the European Council building in Brussels to photocopy the documents he had been allowed to “consult” it became clear their policy of “deterrence” was not working. Tony Bunyan commented on the struggle to get access to Council documents on the “third pillar”: “fighting secrecy is only a means to an end, not an end in itself. The point is to bring out into the open decisions which have been taken that affect the civil liberties of EU citizens and the rights of migrants trying to enter the EU or who are being held in camps across the EU.”

    K4 CASE

    Press release, Industry Council, Brussels 20 May 1996. Mr Pierluigi BERSANI in the Chair for the Italian Presidency:

    Public access to documents

    The Council gave its agreement, with the Danish, Irish, Greek, Netherlands, Finnish, Swedish and United Kingdom delegations voting against, to the reply to be given to a request for Council documents submitted by Tony Bunyan. The Belgian, Danish, French, Swedish and Finnish delegations gave the following explanations for their votes:

    Explanation of vote by the Danish and Swedish delegations

    “The Danish and the Swedish delegations cannot endorse the content of the reply. They disagree with the interpretation of the term “repeat application” contained In Article 3(2) of the Council Decision as they consider that the term must be particularly intended for cases where the same applicant requests access to the same document on more than one occasion.

    On an overall assessment of the circumstances of the case, the Danish and the Swedish Delegations therefore cast a negative vote.

    The Danish and the Swedish delegations request that the result of the vote and this statement be published.”

    Explanation of vote by the Belgian and French delegations

    “The Belgian and French delegations support the draft reply and the interpretation contained therein of the concept of “repeat applications”.

    They consider that the applications by Mr Bunyan are repeat applications, that they are contrary to the spirit of the 1993 decision and that they abuse the good faith of the Council in its willingness to be transparent. They accordingly consider the reply to he “fair” within the meaning of the 1993 decisions.”

    Explanation of vote by the Finnish delegation

    “Finland does not agree with the content of the reply.

    Finland does not consider Mr Bunyan’s request as a repeat application. It should have been treated as an ordinary request.

    Finland therefore votes against.”

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