In 1996 the European Environment Agency telephoned a journalist informing him that his bid won a public tender. Then a few weeks later it wrote to say another person had in fact been given the editing contract. The journalist complained to the Ombudsman. In 2001 after the EEA had very reluctantly released some relevant documents, the Ombudsman judged that the Agency had broken Community law on three separate counts. The journalist has not received compensation. Nor after years of asking, an explanation why, after he was referred to as ‘the contractee’ in the EEA Board documents, they were altered and the contract was then given, according to the EEA’s own opinion, to someone ‘technically less qualified in environmental matters’. Curious indeed for an agency whose main product for its multi-million euro budget was environmental information.
If the Ombudsman had not prised these EEA documents for scrutiny, the world outside the agencies may have remained in the dark about critical aspects of how such agencies function. Breaking Community law is almost without exception a penalty-free crime for agencies. It is not victimless. A journalist who had lost a three-year tender contract through internal EEA shenanigans will confirm. The Agency itself lost not a single euro.
Breaking Community law extends to many areas. To give one example out of many: information access. A journalist’s main concern is the release of information and then the analysis and commentary on it. This process, essential for the smooth working of a democracy, is stymied completely if the information is stopped at source. How in a democratic system like the Community can journalists be assured they can obtain information essential for the public – for example about money decisions – but that an agency management board would prefer not to publish? That can only be done by the Community agreeing on rules for the release of information and codifying them in law. That’s why published information access policy is so important.
What happened at the Environment Agency? In 1997 it officially declared it had ‘legal autonomy’ and ‘was not bound’ by EU Council and Commission document access legislation. It then published its own Decision on information access. A Decision should have force of European law but, according to the EEA, this ‘is to be applied on an independent basis’. Of course there were many escape clauses. It was one of these that the EEA abusively used to try to stop all information behind a public tender decision. The EEA Executive Director wrote to the General Secretary of the journalists’ trade union that no tender information could be released on the grounds of ‘public and private interests’. Did the public have no right to know how its own money was being spent?
However, the legal Decision anticipated such conflicts and required that within two years the EEA Executive Director produce a report, analysing the experience encountered. This report was, of course, essential for journalists as it allowed a democratic dialogue to be established.
And, of course, the EEA did not produce the report.
The journalist, unaware that the report had not even been produced, wrote several times requesting it. Then he lodged another complaint with the Ombudsman. Suddenly the EEA started writing a report, two-and-a-half years late. It amounted to three-and-a-half typed pages. The annexes were much longer than the report itself. They were dominated by the earlier Ombudsman’s report condemning the EEA information access failures. The EEA gave no commentary and drew no lessons as to what it proposed to do to correct the information policy catastrophe. The extensive journalist’s correspondence – 3 requests for access and 13 applications for review, dealing with how the EEA system could be improved – was ignored!
Information is the main EEA output. It is as if a car manufacturer dismissed as irrelevant the fact that his cars were all fatally accident-prone. It is not as if the EEA had produced much; only 10 other requests for information access were registered in four years!
When a Community Decision is passed by the Council of Ministers aimed at a European industrial sector, the industries concerned are expected to conform under the penalty of the law. However the cursory and lacksadaisical way such agencies treat their own constitutional law reflects slip-shod attitudes or contempt.
Open information, respect for the rule of law and citizen’s rights were basic principles that the founding fathers applied in creating the European Community treaties. There is little point for the Council of Ministers and the European Parliament passing laws (Regulations, Directives and Decisions) if they become no more than a wish list. Non-respect for law leads to closed bureaucratic bastions – definitely not in line with the spirit or letter of the original European Community treaties.
The early treaties make it possible for the European Commission to collect and verify national and private sector information, previously hidden, disputed or deliberately distorted. The Commission is obliged to publish key information under scrutiny of many bodies. It can also be fined in Court for irresponsible use of confidential information. The founding treaty also provides for the severe fining of companies for withholding legally required information, essential for other Europeans to understand the economic dynamics of the European single market. Shouldn’t fines also apply to the agencies?
These treaty guarantees on freedom of information have made the European area a real open society, as at no time in the past. It is to the benefit of all. Journalists and the public must constantly defend and maintain these rights.
So what should be done with agencies that thumb their noses at European law? Should an individual have to take on this burden for 375 million co-citizens? Is it the responsibility of an individual to go to the European Court – with all the expense that entails – in order to have crime, that is broken European law, dealt with? The problem is that although the Ombudsman and his legal team gave their judgement that three European law ‘crimes’ were committed, the agency in question is still refusing to reveal what went on with public money. That brings European law into disrepute. If the European institutions themselves cannot or will not bring their behaviour in line with European law, why should any citizen?
Isn’t it high time that agencies and other European institutions should be fined for each demeanour? Firstly if it is a specific action of a corrupt or negligent official he should be reprimanded according to the Staff Regulations. This is hardly ever done for problems such as financial laxity or diverting tender decisions. The institution or the directorate general should also be dealt with collectively as such decisions are rarely the fault of a single person. Should they not lose part of their internal budgets if they refuse to provide legally required information or if they are judged by the Ombudsman to be breaking Community law?
Information access is the key element for stopping abuses of power. A study of the EEA’s reluctantly released documents revealed how an agency is able not only to stop information access. It can make up their own finance rules without any detection by the normal Community controlling services.
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