EU Ombudsman conflates negotiation and ratification documents

I wrote a letter to the European Ombudsman to solve a misunderstanding regarding my complaint against the European Parliament (see below or pdf).

ACTA is dead in Europe, but there are still issues with disclosure of documents. In 2012, the European Parliament refused to disclose the parliament’s legal service’s opinion on ACTA, the Anti-Counterfeiting Trade Agreement. In September 2013 I filed a complaint with the European Ombudsman against the European Parliament over this. Unfortunately, the Ombudsman didn’t want to investigate my complaint, so I asked her to reconsider her decision. Her reply now shows she misunderstood my complaint.

In her reply, she refers to a decision on negotiation documents. This clarifies what went wrong. My complaint does not regard negotiation documents, but ratification documents. Negotiation documents are made by the negotiators (Commission, governments) during the negotiations. Ratification documents are made by the European Parliament (or Council) after the negotiations, during the ratification process.

According to EU case law institutions can refuse to disclose negotiation documents to protect mutual trust among negotiators. After the negotiations, the Commission published the final text. The contested legal service’s opinion is an assessment of this published text. Disclosure of this opinion can not harm the mutual trust among negotiators.

Citizen participation in ratification processes is essential, especially if the prior negotiations were confidential. An Ombudsman decision that legal service’s opinions related to the ratification process have to be disclosed would be of major importance for citizens.

Additionally, in my complaint against the parliament I argue that EU law is not compatible with the human right to participate in decision making processes. An Ombudsman discussion on this argument could also be interesting.

Other issues

The preparatory ACTA documents are still secret, despite an EDRi complaint to the Ombudsman. The Ombudsman added an interesting Further remark to the decision: “Given that Parliament’s application of Regulation 1049/2001 is affected by commitments such as the one entered into by the Commission in this case, Parliament, as a political body, could intervene with the Commission and the Council with a view to ensuring that, in future, the very nature of Parliament, which is openly to deliberate on such issues, is not undermined.”

The parliament lied about the existence of coordinators’ minutes related to ACTA. Last year I filed a complaint with the Ombudsman against this.

Beyond ACTA, Corporate Europe Observatory has an interesting appeal running over negotiation documents and the Council appeals against the judgment of the General Court (Fifth Chamber) delivered on 4 May 2012 in Case T-529/09: Sophie in ‘t Veld v Council (Case C-350/12 P).

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complaint 1814/2013/RT

19 January 2014

Dear Ms O’Reilly,

I would like to kindly thank you for your reply on my request to reconsider your decision on complaint 1814/2013/RT. In your reply you refer to a decision on negotiation documents. This shows a misunderstanding of my complaint, as my complaint does not regard negotiation documents but ratification documents, for which disclosure is the norm. You conflate negotiation and ratification documents and erroneously apply case law on negotiation documents also on ratification documents. As the issues at stake are important and a fundamental misunderstanding came to light, I hereby ask you to reconsider your reply.

Ratification documents versus negotiation documents

It is essential to make a distinction between negotiation documents and ratification documents. Negotiation documents are made by the negotiators (Commission, governments) during the negotiations. Ratification documents are made by the European Parliament (or Council) after the negotiations, during the ratification process. Almost all negotiation documents are kept secret for a long time. Almost all ratification documents are immediately disclosed.

According to EU case law, disclosure of negotiation documents can harm the public interest as regards the protection of international relations. In 2009, I was the first in Europe to file a complaint against the secrecy of ACTA negotiation documents, Complaint 90/2009/(JD)OV. While the complaint did not lead to disclosure of documents, the Ombudsman’s formulation “citizens would have a clear interest in being informed about the ACTA” still was influential in the political process. Of course, years later, I didn’t refile a similar complaint – it wouldn’t have made sense. My present complaint does not regard negotiation documents, but ratification documents.

ACTA was initialed on 25 November 2010, this marked the end of the negotiations. The Commission published the final text, to be scrutinized and possibly ratified. After years of secret negotiations, finally public scrutiny and debate could start. The contested legal service’s opinions are assessments of the published final text. Neither the published final text nor the legal service’s opinions contain negotiation positions or anything like that.

The Parliament immediately published almost all ACTA ratification documents, such as studies, workshops, human rights assessment, debates, (draft) committee opinions and report. The Parliament only made some exceptions. First, the Parliament obscured the existence of committee coordinators’ minutes. In 2012 I filed a complaint regarding these minutes, Complaint 0262/2012/OV. Second, the Parliament refused to disclose the contested legal service’s opinions (which the Parliament produced itself in 2011, after the negotiations). While my 2009 complaint regarded negotiation documents, my 2012 and present complaint regard ratification documents.

During the ACTA negotiations, the Parliament had stressed the importance of openness. After the negotiations the Parliament produced and refused to disclose the contested legal service’s opinions – this shocked or amazed many people. At a Dutch House of Representatives’ committee meeting, 13 December 2011, minister of Economic Affairs, Agriculture and Innovation, Maxime Verhagen, said the refusal to disclose the European Parliament’s legal service’s opinion on ACTA was “gek” (odd/silly/crazy). He also said: “I support this Dutch citizen in spirit and deed”.

http://acta.ffii.org/?p=975

Why would a legal service’s opinion on an officially published text be kept secret? The Parliament did not refer to protection of the negotiations – that would not have been convincing as the negotiations were over before the documents were produced. To keep the legal service’s opinions secret, the Parliament invoked the public interest as regards the protection of international relations. The Parliament used a sole justification for invoking the public interest as regards the protection of international relations: article 18 Vienna Convention on the Law of Treaties (VCLT). The Parliament also invoked the protections of legal advice and the ongoing decision making process.

Conflating negotiation and ratification documents is unfounded

In your reply to my letter, the Ombudsman overlooks the distinction between negotiation documents and ratification documents, the Ombudsman conflates them. While my complaint is about ratification documents, the Ombudsman refers to a decision on negotiation documents. Two things go wrong here.

First, by referring to negotiation documents, the Ombudsman uses an argument which the Parliament itself did not use. The Parliament (rightly) did not conflate negotiation and ratification documents. The Parliament’s sole justification for invoking the protection of international relations is article 18 VCLT.

Second, decisions and case law on negotiation documents do not apply to ratification documents. The Ombudsman refers to Complaint 2393/2011/RA. The decision in Complaint 2393/2011/RA is based on Case T-301/10 In ‘t Veld v Commission. According to Case T-301/10 negotiation documents can be kept secret to allow mutual trust between negotiators and the development of a free and effective discussion during the negotiations (para. 119).

The decisive arguments in Case T-301/10 can not be used against disclosure in my case. Disclosure of the contested documents neither discloses negotiation positions nor disturbs mutual trust between negotiators or the development of a free and effective discussion during negotiations – as the negotiations were over before the documents were made, made by others than the negotiators, and the documents are just legal service’s opinions on a publicly available text.

As a result, Complaint 2393/2011/RA and Case T-301/10 are unrelated to my complaint. For similar reasons, Case T-529/09 Sophie in ’t Veld v Council is unrelated to my complaint. Case law on negotiation documents can not prejudice the openness of the contested legal service’s opinions.

The Ombudsman states that she has already taken a stance on similar if not identical arguments in Complaint 2393/2011/RA. This shows a fundamental misunderstanding as the Ombudsman decided Complaint 2393/2011/RA by referring to Case T-301/10, both of which, as we saw above, can not prejudice the openness of the contested documents. Ratification documents are not negotiation documents. Furthermore, in Complaint 2393/2011/RA the complainant invoked article 32 Vienna Convention on the Law of Treaties. In my case, the Parliament invoked article 18 VCLT. That is an other article.

Ratification documents

We saw above that case law on negotiation documents can not prejudice the openness of the contested documents. In my opinion, investigating my complaint involves three major questions.

First, did the Parliament err in law regarding article 18 VCLT? If the answer is affirmative, the Parliament’s sole justification for invoking the protection of international relations falls away.

Second, did I provide overwhelming public interest in disclosure? If the answer is affirmative, the protections of legal advice and the ongoing decision making process fall away.

Third, is the Parliament’s decision conform human rights law? In my complaint I argue that citizens have a human right to participate. The EU can only skip this human right by law, if necessary in a democratic society, and if proportionate.

If the answers to the first two questions are affirmative, the Parliament has to officially disclose the legal service’s opinions. If the answer to the third question is negative, the Parliament has to officially disclose the legal service’s opinions.

Documents not officially disclosed

The Ombudsman states that the documents were officially disclosed by an MEP. This is not correct, the documents could not be officially disclosed by an MEP, as they were produced upon request of committees. The coordinators of the legal affairs committee decided to release the documents, but did not actually do that. According to the Parliament, the coordinators were not competent to do this. See the 14 March 2012 answer to my 19 February 2012 confirmatory application: “(…) no decision exists to fully disclose document SJ661/11 which has been formally adopted by any competent political body of the European Parliament.”

Effet utile

In my opinion, there is a serious chance an investigation will lead to the decision that the Parliament has to officially disclose the legal service’s opinions. Indeed, why would legal service’s opinions on an officially published text be kept secret?

Citizen participation in ratification processes is essential, especially if the prior negotiations were confidential. An Ombudsman decision that the legal service’s opinions have to be disclosed would be of major importance for citizens.

This will help citizens (including me) in the future. While citizens will be able to challenge the Parliament’s error in law in the future, if made again, the procedures to do this will take so much time that the parliamentary ratification process of an international agreement will long be over before citizens (including me) will have gained access to the legal service’s opinion. Timely discussion of the Parliament’s error in law (now) and future timely disclosure of legal service’s opinions is essential for citizens’ participation in the decision making process.

Discussion of my human rights argument may bring further effet utile.

yours sincerely,

Ante Wessels

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