1

Using the ‘Aarhus option’Bluefin tuna case study

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Background to case

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Background to case (2)

• March 2010: suspicious transfer of live BFT to Malta by Italian trawlers

• Inconsistencies in catch documentation

• Commission failed to confirm legality

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EU disclosure request14 April 2010

• All paperwork for the suspicious transfer (catch and transfer declarations, observer report, video)

• Any & all communication on transfer with Malta, Italy or ICCAT

• Request made under Regulation 1367/2006 (‘Aarhus’)

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Refusal8 October 2010

•Access to all documents refused based on 3 grounds:• Commercial interests• Privacy of individuals• Ongoing investigation

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Confirmatory Application29 October 2010

•Failure to state proper reasons:• No commercial secrets – fishing quotas are public• What private data?• What harm to the investigation?

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Refusal No. 24 March 2011

• Commission still refusing, but with intriguing reason:

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Refusal No. 2 (continued)4 March 2011

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Ombudsman complaint19 April 2012

Our main arguments:

• Withholding info on infringements is not compatible with Aarhus.

• Aarhus exception only for ‘ability of a public authority to conduct an enquiry of a criminal or disciplinary nature’

• Convention assumes that public scrutiny, rather than a ‘climate of confidence’, promotes compliance

• Petrie ruling doesn’t apply to environmental info

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Ombudsman complaint19 April 2012

• And the Commission ignored the overriding public interest:

• BFT is key ecological / cultural / economic resource• Management of the fishery a ‘travesty’ / ‘disgrace’• EU taxpayers fund the fishing vessels• EU taxpayers fund the enforcement• Right to know whether fishermen / MS

respect the rules• And whether Commission is upholding them

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Request no. 219 April 2012 (same day)

• The Commission decision informing Malta of BFT irregularities and asking for an inquiry, plus any annexes;

• The inquiry report drawn up by Malta;

• The Commission’s assessment of Malta’s report;

• The Commission’s follow-up measures, if any;

• Any correspondence with Malta on further BFT irregularities since refusal of previous request (ie. since March 2011).

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European Voice7 June 2012

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Commission response11 June 2012

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Confirmatory application & reply25 September 2012

• As always, Commission missed its deadline due to ‘complexity’ of the request:

• But:

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Further process

• 18 February 2013: Second complaint to EU Ombudsman

• 26 June 2012: the same information requested from Malta under ‘Freedom of Access to the Environment Regulations’ (no reply)

• 1 September 2012: First-ever appeal to Malta FOI Commissioner (no reply yet)

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Conclusions

1. EU access to info regime is pretty dysfunctional

2. The Commission doesn’t necessarily give more info under Aarhus

3. Will the Ombudsman or Court force them? We’ll see.

4. If you’re a ‘nutty’ NGO or journalist and persist, you may uncover some things – even from refusals.