CONSEIL DE L'UNION EUROPÉENNE. Bruxelles, le 18 mai 2009 (19.05) (OR. en) 8671/09

Transcription

1 CONSEIL DE L'UNION EUROPÉENNE Bruxelles, le 18 mai 2009 (19.05) (OR. en) 8671/09 OMBUDS 9 INST 61 INF 99 API 50 JUR 182 NOTE POINT "I/A" du: groupe "Information" aux: Coreper (2 ème partie) / Conseil n doc. préc.: 8670/09 Objet: Plainte 523/2009/TS adressée au médiateur européen par M. Martin OTTMANN Les délégations trouveront en annexe un projet de réponse du Conseil à la lettre que le médiateur européen lui a transmise le 30 mars 2009 concernant la plainte 523/2009/TS, tel qu'il se présente après avoir été examiné par le Groupe"Information" lors de sa réunion du 14 mai Le Comité des représentants permanents est dès lors invité à suggérer au Conseil qu'il marque son accord, en point "A" de l'ordre du jour de sa prochaine session, sur le projet de réponse qui figure à l'annexe du présent document. L'annexe n'est disponible qu'en anglais. 8671/09 hel/amp 1 DG F FR

2 ANNEXE DRAFT Brussels, Mr Nikiforos Diamandouros European Ombudsman 1, avenue du Président Robert Schuman B.P. 403 F Strasbourg Subject: Request for public access to document 14483/06 relating to the approval of a reply to a letter of the European Parliament on transmission of information to the Temporary Committee on the alleged CIA use of European countries for the transportations and illegal detention of prisoners - Complaint made by Mr Martin OTTMANN (523/2009/TS) - your letter dated 30 March 2009 Sir, Thank you for your letter of 30 March 2009 concerning a complaint by Mr Martin OTTMANN in which you ask the Council to submit an opinion on the above matter. I am pleased to inform you of the Council s position on this complaint. The complaint 1. In a complaint dated 28 February 2009 submitted to the Ombudsman against the Council, Mr Ottmann complained against the decision of the Council of 19 January 2009 in reply to his confirmatory application, in which the Council denied public access to document 14483/06. This document, classified RESTREINT UE, concerns the approval of a reply to a letter of the European Parliament on transmission of information to the Temporary Committee on the alleged use of European Countries by the CIA for the transportation and illegal detention of prisoners. 8671/09 CF/JT/mi 2

3 The facts a) Initial application 2. On 23 July 2008, the complainant requested public access to a listing of all written/electronic reports, memoranda, protocols, minutes and notes by the EU Council, which have been written between September 11th, 2001 and July 22nd, 2008 with regard to all aspects of the so-called 'extraordinary U.S. rendition program', i.e. a) the illegal kidnapping of individuals by federal agencies of the U.S. government on the territory of the European Union, b) the illegal detention by or on behalf of federal agencies of the U.S. government on the territory of the European Union, c) the illegal transportation of so-called 'battlefield detainees'/'unlawful combatants' and 'terror suspects' by federal agencies of the U.S. government using airspace and airports belonging to the territory of the European Union. 3. In its reply dated 19 November 2008, the General Secretariat granted the applicant full access to twenty-one documents as well as partial access to two documents. As regards document 14483/06, public access was refused in its entirety pursuant to Article 4 (1)(a), third indent (protection of the public interest with regard to international relations), of Regulation (EC) N o 1049/2001 regarding public access to European Parliament, Council and Commission documents 1. b) Confirmatory application 4. In his confirmatory application of 4 December 2008, the complainant contested the initial reply of the General Secretariat, and requested the Council to review its position regarding document 14483/06. 1 OJ L 145 of , p /09 CF/JT/mi 3

4 5. Following consideration of the complainant s arguments, the Council decided to confirm the initial reply by the General Secretariat in which it denied public access to the document in question pursuant to the third indent of Article 4(1)(a) of the Regulation (protection of international relations). The Council concluded that, in view of its sensitive content, disclosure of the document would be detrimental to the good functioning of the relations between the EU and the US, in particular, by hindering the diplomatic efforts continuously being made in order to find constructive solutions to issues in areas of the highest political importance. The Council also refused to grant partial access to the document, since the exception relating to the protection of international relations applied to the entirety of the document. c) Complaint to the Ombudsman 6. In his complaint 523/2009/TS to the Ombudsman, the complainant disputes the Council s decision insofar as it refused partial access to those parts of the document regarding the CIA rendition programme and other relating information. Accordingly, he claims that the relevant parts of the requested document should be released to the public. Observations 7. Article 4 of Regulation 1049/2001 lays down a set of exceptions to the right of public access based on public interest, among them the protection of international relations. The third indent of Article 4(1)(a) provides that "The institutions shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards: ( ) - international relations," 8671/09 CF/JT/mi 4

5 8. The exceptions set out in Article 4(1) of the Regulation, including the protection of public interest as regards international relations, are framed in mandatory terms. In consequence, once it is established that the requested document falls within the sphere of international relations and that the protection of the invoked interest would be impaired if the document were to be disclosed, the institution must refuse public access 1. According to constant caselaw, the institution enjoys a wide discretion in the context of a decision refusing access founded on the protection of the public interest concerning international relations It is in the above legal framework that the Council's statement of reasons for refusing public access has to be appreciated. 10. As stated earlier, the document in question relates to an "I" item note containing a draft reply to a letter by the European Parliament's Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners dated 3 October 2006, in which the Temporary Committee requested information from the Council concerning discussions between the Council bodies and the US authorities concerning measures to combat terrorism and the legal approach followed by both sides 3. As it appears from the letter, information on this subject had been exchanged between the Council and the European Parliament confidentially, in order to preserve the sensitive contents concerned. 11. Document 14483/06 contains elements for a reply to the procedural and substantive issues raised in the above letter by the Temporary Committee with regard to its request for information on the cooperation between the EU and US authorities on activities falling within the Temporary Committee's remit. The document is classified as RESTREINT UE, indicating that its unauthorised disclosure could be disadvantageous to the interests of the European Union or one or more of its Member States. It is precisely for reason of the sensitive nature of the issues involved that transmission of information contained in the draft reply was made conditional upon a confidential treatment by the European Parliament See case C-266/05 P Sison v Council, [2007] ECR I-1233, pt. 46. See eg. T-188/98 Kuijer v. Council [2000] ECR II-1959, paragraph 53. The partially accessible version of the letter by the European Parliament's Temporary Committee of 3 October 2006, as set out in 14396/06, has been sent to the applicant within the framework of the initial reply. See in annex. 8671/09 CF/JT/mi 5

6 12. In the statement of reasons in its decision, the Council established that, based on its sensitive content, disclosure of the document in question would be "detrimental to the good functioning of the relations between the EU and the US." It would, in particular "hinder the diplomatic efforts continuously being made in order to find constructive solutions to issues in areas of the highest political importance, including the areas of human rights law and international humanitarian law". 13. Notwithstanding its brevity, the above statement of reasons fully enabled the applicant - who moreover has an extensive knowledge of the issues concerned - to understand and ascertain the reasons justifying the refusal of the requested document. It is also pointed out that it was not possible to give more extensive reasons justifying the need for confidentiality without disclosing the content of the document, and, thereby depriving the exception of its very purpose. 14. As regards the alleged failure to provide reasons for refusal of partial access, the Council would recall that Article 4(6) of Regulation 1049/2001 provides as follows: "If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released." 15. At the outset, the Council notes that already at the stage of the complainant's initial request, document 14483/06 was identified by the General Secretariat as relating to the "CIA rendition programme". The applicant's initial request to that document was refused in its entirety under the third indent of Article 4(1)(a) of the Regulation. Consequently, by requesting partial access in the confirmatory stage to information contained in the requested document precisely on the "CIA rendition programme" and "CIA kidnappings", the applicant did essentially repeat his request for full access to the document. Therefore, the statement of reasons for refusing the disclosure of document 14483/06 as discussed above also extends to the applicant's partial access request. 8671/09 CF/JT/mi 6

7 16. Nevertheless, in its examination of the complainant's confirmatory request, the Council also looked into the possibility of granting partial access to the relevant parts of the document under Article 4(6) of the Regulation, but concluded that it was impossible since the content of the document formed an inseparable whole. 17. In this respect, the Council would again emphasise that, in view of the particular circumstances of the case, the mere fact that the statement of reasons is short may not amount to a failure to state reasons. In fact, the applicant requested partial access to information falling manifestly under the exception under the third indent of Article 4(1)(a) under Regulation 1049/2001, notably information concerning the "CIA rendition programme". In view of the sensitivity of the issues covered in the requested document, it would have been impossible to provide more complete and individualised reasons justifying the refusal of the relevant passages without disclosing the essential aspects of its content, and, thereby depriving the exception of its very purpose. 18. For the reasons set out above, the Council considers that the complaint is unfounded. (Complimentary clause) Pierre de Boissieu Enclosure : Document 14396/ /09 CF/JT/mi 7