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The schizophrenic Council, Part 2: The follow-up story on how the EU Council deliberately prevents transparency

“Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.”
Article 42, Charter of Fundamental Rights and Freedoms of the European Union

On Monday or Tuesday (30-31 May 2011), 21 EU member states will formally approve in the Council of the European Union that EU citizens may not have access to the positions they put forward in the EU Council during legislative processes.

They do so against a recent ruling of the EU Court that clearly asked them to revise this practice. Only six countries – Bulgaria, Czech Republic, Denmark, Estonia, Finland and Sweden – think that this is wrong, the rest opts in favour of intransparency.

The Council will do so following my request for information on the reform of the European Maritime Safety Agency (EMSA), the background of which I have described in “The schizophrenic Council“, and my subsequent appeal for which this answer has been produced by the Council, an answer that is adopted several weeks late because of the poor organisation of the internal work of the Council (see in the timeline below).

Let me summarise the arguments of my appeal and the Council’s answers to show you why it is both wrong in substance and in principle, and how the Council deliberately prevents transparency:

1. My first argument was that a similar document of the same process was completely public. The Council’s argument was that

an inquiry into the circumstances of the publication of that document lead to the conclusion that it had been released in its entirety due to a clerical error and not because of a change of the Council’s transparency policy as regards disclosure of delegations’ identities in documents relating to a proposal for a legislative act which is still under discussion within the Council.

In other words, transparency in the Council happens by mistake, not by default.

An official of the Council released the earlier version by error (can we have more of these, please!), and the Council continues deliberately to ignore Article 42 of the Charta of Fundamental rights as well as Article 15 of the Treaty on the Functioning of the European Union which says that “the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible” and that “The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures“.

2. My second argument was that, as the Council does regularly, it had not argued why in this particular case the publication of member states’ positions would endanger the decision-making process. The Council’s argument:

Negotiations in the Shipping Working Party have recently reached a sensitive stage since they have now been concentrating on the most conflicting issues as regards the Commission’s proposal. Disclosure of the names of delegations in relation to their recent positions recorded in the requested document, dating back to 6 April 2011, risk to considerably reduce the flexibility for those delegations to formulate and reconsider their positions in the light of the arguments exchanged in the debate and thwart their efforts to overcome the outstanding points. […] During that three months’ period delegations’ positions have evolved considerably and become more detailed. A comparison between the two documents would allow targeted interference with the ongoing, sensitive decision-making process described above.

Here, the Council invents two completely new legal concept, namely the “sensitive stage” of a decision-making process in the Council and the danger of “target interference“.

The first concept, to my knowledge, does not exist anywhere in legal texts and its a pure invention of the Council to remain intransparent in this case. Who decides what a “sensitive stage” is and what impact would this – disgusting – invention have if we would accept it as given?

And the second concept means that the Council does object to any “targeted interference”, which for example could be the public complaining about double-standards shown by some member states in what they preach publicly and what they put forward in the Council. In other words, “targeted interference” is what others call “democratic participation” of citizens and their organisations.

3. My third argument was that the decision not to disclose member states’ positions was against the recent Court ruling Access Info v. Council of the European Union in which the Court highlighted that the “possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights” (§ 57) but more importantly that

it should be noted that public access to the entire content of Council documents – including, in the present case, the identity of those who made the various proposals – constitutes the principle, above all in the context of a procedure in which the institutions act in a legislative capacity, and the exceptions must be interpreted and applied strictly (see paragraphs 55 to 57 above).

If citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information. The identification of the Member State delegations which submit proposals at the stage of the initial discussions does not appear liable to prevent those delegations from being able to take those discussions into consideration so as to present new proposals if their initial proposals no longer reflect their positions.

By its nature, a proposal is designed to be discussed, whether it be anonymous or not, not to remain unchanged following that discussion if the identity of its author is known. Public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently.” (§69)

Here the Council argues that “the judgment has no legal implications for the present case. Moreover, it should be pointed out that the Council has decided to appeal the judgement in question before the Court of Justice.

In other words, what the Court rules is not binding for the EU Council. The Council’s legal service has apparently proposed a careful wording by saying that there are no legal implications, in particular since the Council wants to appeal the ruling. In other words, the Court and my appeal may be right morally, but legally this does not apply in its view.

From what I know (though I’m no legal expert) this interpretation is even wrong, the judgement should have to be applied until the Council would win the appeal. The fact that six member states have opposed the negative decision regarding my confirmatory application referring to the judgement shows that this interpretation is in fact contested among EU member states.

But already the fact that the Council appeals against the judgement means that a majority of member states is ready to fight against what they have agreed on through the ratification of the Lisbon Treaty. In fact, against the EU’s constitutional basis, a majority of member states opts for intransparency, even against the clear argumentation of the Court above and the stipulations of the Treaties, forcing us the public to fight over years for our right. When we lose, we have to pay the costs of the procedure, if the Council loses, it’s the taxpayer paying – a clear win-win situation for the Council and the member states that are in favour of intransparency.

4. My fourth argument was that given the fact that journalists and bloggers from several EU countries had shown an interest in the matter, there was even an overriding public interest in disclosure in this particular case. The Council argues that

“[t]here is, however, as stated above, a concrete risk that currently ongoing efforts to reach agreement within the Council would, at a sensitive stage, be negatively affected.

In other words, according to the Council, there can never be an overriding public interest in disclosure of member states positions while decision-making is still ongoing, even when there is a journalistic interest from around the Union, in particular not at “a sensitive stage“, a term invented by the Council for this purpose alone.

5. My fifth and last argument was that the Council had not considered my request in the light of the Aarhus regulation (Regulation 1367/2006 on on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. Here the Council argues that “The requested document therefore does not concern environmental information within the meaning of Article 2(1)(d) of Regulation (EC) 1367/2006“. To come to this conclusion, it argues that:

The requested document concerns proposed amendments to EMSA’s institutional framework and the transferral of additional tasks to EMSA, including, among others, prevention of and response to pollution caused by ships as well as response to marine oil pollution caused by oil and gas installations. Beyond the transferral of tasks, however, the proposal in question does not foresee itself any measures affecting, likely to affect or protecting elements of the environment.

First, this is a contradiction in itself. If EMSA will get the right to work to prevent oil spills from oil and gas installations (‘oil platforms’), this will directly affect the work of this body. EMSA already rents the ships that can get spilled oil out of the sea and if it gets the right to deal with oil spills from platforms it can act as soon as something happens (which it cannot do now). So the argumentation by the Council is either stupid because it doesn’t know what it is deciding on or deliberately misleading, and both cases frighten me.

In addition to that, the article of the Aarhus regulation cited by the Council clearly says that environmental information are

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in points (i) and (ii) as well as measures or activities designed to protect those elements)” [remark: i+ii referring to the state of the environment or factors affecting it].

So even if the previous argumentation by the Council was right (which it isn’t), there is no need that the proposal “itself” contains measures (whatever that actually means) but that it is enough that there are policies or activities that are likely to affect or protect elements of the environment, which the EMSA regulation clearly foresees and the reform clearly affects.

In summary, the Council’s response is not just morally wrong but it goes against the basic legal principles of the European Union as set out in the Treaties, it contradicts a recent ruling of the EU Court, it invents new concepts for intransparency, it ignores the existence of an overriding public interest in knowing what member states do and say during legislative processes (even when there is a strong public interest), it contradicts itself in its reasoning and it can’t read the transparency regulations that govern its work.

Congratulations, EU Council!

The timeline of my request for access to documents

  • On 11 April 2011, I requested this document from the Council of the European Union. This document which was totally confidential at the time contains EU member states’ positions on the reform of EMSA, the European Maritime Safety Agency situated in Lisbon.
  • On 18 April, I and thereby the public as a whole was given partial access to the document, with member states’ names blanked out.
  • On 26 April, I filed an appeal (‘confirmatory application’) to get the names of the member states. The appeal  was made public in the Council register as 9702/11 on 13 March. Since this document made my home address public, I requested on 15 March (Sunday) to revise the document and not to disclose my postal address which was done immediately on Monday, 16 March, by the Council secretariat (thanks!), so my appeal can be found in the revised document 9702/11 REV 1.
  • On 6 May, the EU Council Working Party on Information, a working-level committee of EU member states officials that handles these appeals did not consider my request. At this point it was more or less obvious that the Council would not be able to deal with my request within the time limits set by the access to documents regulation (15 working days) and it should have informed me about that.
  • On 18 May, the exact deadline for the 15 working days limit given by the regulation, the Council Secretariat sent me a letter (email) telling me that “[d]ue to exceptional constraints in the timetable for meetings of the various Council bodies involved” they needed 15 days more in accordance with the regulation. However, given that the Working Party on Information meets only every two weeks, this was not an exceptional case but one that simply is due to bad organisation of how they deal with confirmatory applications.
  • On 20 May, the Working Party on Information finally dealt with my request.
  • On 25 May, the Committee of Permanent Representatives (COREPER II), that is ambassadorial level of the Council, dealt with my request.
  • On 30-31 May, the EU Council deals with my request as an “A” item, meaning that the vote has been done in COREPER and will just be formally confirmed on the ministerial level.

Altogether, it will have taken almost two months for me to know that my rights as a citizen of the European Union have been violated. Now I will have to decide whether I complain to the EU Ombudsman for a quick but non-binding appeal or whether I go to the EU Court and will spend the next 2-3 years with a document that will be made public until then.

Disclosure: I advise, as a volunteer, the EU office of Transparency International (TI) in Brussels on different issues, among them access to EU documents. In this context, I have been involved over the last year in advocacy activities to change rules and practices. However, this request and the subsequent appeal are not part of my involvement with TI, although by nature these issues are related and, having reached this stage of the process, it now becomes difficult to separate my personal interests in getting the EMSA document from my broader engagement for a wider access to EU documents. Yet, for now, this is and remains my personal interest and does not involve Transparency International as an organisation.

2 Responses to The schizophrenic Council, Part 2: The follow-up story on how the EU Council deliberately prevents transparency

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