EIDHR Funding to Oxfam Novib and the Palestinian Center for Human Rights
NGO Monitor’s Request for Documents
“Public Security” Exception
Suppression of Critical Debate
Lack of Due Process
This memo documents the lack of transparency in European Commission processes which provide funding for political advocacy NGOs (non-governmental organizations) in the context of the Arab-Israeli conflict. We provide several detailed examples in which the EC denied, without justification, the freedom of information (FOI) requests and the subsequent lawsuit filed by Gerald Steinberg, in his position as president of NGO Monitor, a Jerusalem-based research institute. The extent of EC funding for these organizations is estimated to exceed ten million Euros annually.
The initial FOI request was filed by NGO Monitor with the EC in October 2008, and after this was denied, we turned to the European Court of Justice, with the expectation of a full and fair hearing, addressing the intense secrecy in EC funding for Israeli and Palestinian NGOs. However, after three years, the Court simply accepted the Commission’s claims, without undertaking a substantive and independent review on the merits. The rationale (“danger to public security) offered for denying the FOI request to make public the protocols and evaluations of extensive EC funding for “civil society” groups appears to reflect an attempt to prevent debate surrounding this highly problematic grant making process.
On this basis, and the ECJ affirmation of EC secrecy, this memo has been prepared by NGO Monitor in order to draw the attention of the European Parliament to these important issues.
The European Commission funnels at least ten million euros annually to political advocacy NGOs operating in the Arab-Israel conflict, through frameworks such as Partnership for Peace, EIDHR, ECHO, etc. Many of the recipient groups engage in campaigns and activities that are entirely inconsistent with declared EU foreign policy objectives. EC funded groups are among the leaders of the BDS (boycotts, divestment, sanctions) campaigns targeting European cooperation with Israel; of “one state” proposals aimed at erasing the State of Israel, as well as entirely political lawsuits to harass Israeli officials using universal jurisdiction statutes. Such activities directly contradict EU policies promoting peace, and instead, contribute to conflict and violence. Included in this memo is a short case study detailing an EC grant to Oxfam Novib and the Palestinian Center for Human Rights used to facilitate universal jurisdiction lawsuits against Israeli officials for counter-terror operations. Independent auditors hired by the EC to evaluate the funding noted that “It [was] impossible to make any useful comment on this project” because there were “few substantive documents” on file.
Such outcomes highlight the need for detailed and independent examination of the EC funding processes for Israeli, Palestinian, and other political advocacy organizations.
As part of our mandate of documenting the activities and funding processes for political advocacy organizations involved in the Arab-Israeli conflict, NGO Monitor submitted a detailed request to the EU under the Freedom of Information Regulation No. 1049/2001 in October 2008. The request sought documents relating to decisions on funding for Israeli and Palestinian NGOs, including meeting minutes, audits, and evaluations. For more than six months, the EU delayed providing the requested materials, in contrast to Regulation 1049, which requires production within fifteen days of the request.
In May 2009, NGO Monitor received a CD from the European Commission containing a number of documents. Almost all were heavily redacted and whited out, making evaluation of the contents impossible. Inexplicably, many of the redactions erased general titles and sub-headings in standard form documents. In others, information was removed that was publicly available on EU websites or elsewhere in the provided documents. In addition to these confusing and seemingly random redactions, documents relating to many grants falling within the time period of the FOI request were missing.
In response to NGO Monitor’s request for an explanation, the EU claimed the redactions were necessary to protect “public security,” “privacy,” and “commercial interests.” No specifics were provided on how disclosure of the withheld information might threaten these interests. The EU also informed NGO Monitor that its only recourse to challenge the response was to institute proceedings at the European Court of Justice (ECJ) pursuant to Article 8 of Regulation 1049.
On 18 January 2010, Professor Gerald Steinberg, President of NGO Monitor, filed an application with the ECJ. Steinberg also filed a Request for Further Particulars in July 2010, seeking clarification of the Commission’s redactions to the documents and evidence that disclosure of the information could harm the interests suggested by the Commission. However, in order to maintain the secrecy, and in contrast to due process norms, the court never ruled on the request for particulars, nor did it hold a single hearing, denying the right to present the case to the court. Instead, on 4 December 2012, our attorneys received a decision from the Court, dated 27 November 2012, denying the application and repeating the unsupported claim that public release of the documents would threaten “public security.” The decision came more than two years after any substantive contact from the court, and the failure to reply to requests for an update on the proceedings.
Through its decade-long research, NGO Monitor has found that tens of millions of Euros have been provided by the EC to activist groups on the extreme fringe in both Israel and the PA, while the entire funding process is covered by a heavy layer of secrecy. In contrast, information on funding to NGOs operating in repressive societies and violent conflicts such as Iran, Rwanda, Sri Lanka, Morocco, Congo, and Angola is readily available. As demonstrated below, the invoking of “public security” to withhold information surrounding these grants appears therefore to be a pretext to maintain this secrecy and prevent public debate and independent analysis. The ECJ opinion also appears to create a new legal standard whereby the European Commission has been given extremely broad discretion to conceal information on funding decisions and to limit discussion. Such lack of transparency is inconsistent with democratic norms and due process.
These policies should be of grave concern to all who value democratic principles, promotion of genuine peace in the Middle East, and seek a more transparent and accountable Europe Union.
The European Union funnels tens of millions of taxpayer euros annually through numerous different frameworks to political advocacy NGOs operating in the Arab-Israeli conflict. Many of these groups engage in campaigns and activities that are entirely inconsistent with declared European foreign policy, including BDS (boycotts, divestment, sanctions) campaigns targeting European economic, scientific, and academic cooperation with Israel; “one state” proposals; anti-normalization; and lawsuits aimed at harassing Israeli officials and disrupting diplomatic meetings between Israeli and European officials. Not only do these activities directly contradict European policies, but they promote conflict and violence.
Moreover, the available evidence suggests that the EU has been unethically seeking to manipulate Israeli democracy by funding political advocacy NGOs such as Adalah, Breaking the Silence, Peace Now, Machsom Watch, Physicians for Human Rights-Israel (PHR-I), and Public Committee Against Torture in Israel (PCATI). Due to EU secrecy, the only available non-censored document is a leaked protocol (attached as Appendix 1) from a 1999 meeting on NGO funding. This document shows an explicit and concerted plan by European officials to support NGOs in an effort to manipulate Israeli voting patterns.
Other projects have involved exploiting the media to promote propaganda of organizations on the extreme fringe, such as the Israeli Committee Against House Demolitions (ICAHD) and Coalition of Women for Peace (CWP). Funding has also been used for mass publicity campaigns to promote the characterization of Israeli officials as “war criminals,” dissemination of antisemitic rhetoric, promotion of violence and terrorism against Israeli civilians as legal “resistance,” and even calls for the dismantling of the Palestinian Authority. Even more troubling, some funding has gone to individuals with alleged ties to terrorist organizations and to groups involved in organizing violent riots in the West Bank. Because of EU secrecy, it is unknown whether any due diligence was conducted in advance to ensure that such funding was not transferred to terrorist organizations or used for violence in violation of international, European Union, and domestic laws.
Despite the lack of transparency, for the past decade NGO Monitor has attempted to systematically track this funding, allowing European taxpayers, officials, Israelis, and Palestinians to independently evaluate and respond.
One extremely troubling case, out of dozens, 1 illustrates why transparency is so essential:
In 2005, Gaza-based Palestinian Center for Human Rights (PCHR) and Dutch NGO Oxfam Novib received a 36-month, €298,339.08 grant from the European Union to “[c]ontribute to the abolition of the death penalty in the Occupied Palestinian Territory, applied by the Palestinian National Authority via judicial death sentences and via extrajudicial executions” by the Israeli military.2
The funding was provided by the EU’s European Instrument for Democracy and Human Rights (EIDHR) under the auspices of its program entitled the “Abolition of the Death Penalty Project.” None of the other 28 projects funded under this program related to military operations or targeted killings.
With this funding, PCHR and Oxfam Novib conducted activities to promote the use of universal jurisdiction statutes against Israelis. These activities included several conferences with PCHR’s attorneys that were used as legal strategy sessions to facilitate the group’s “war crimes” lawsuits filed in the UK, Spain, New Zealand, Switzerland, the Netherlands, and the US against Israeli officials. Banners displayed at the conferences (often titled “Impunity for Israeli War Criminals”) prominently displayed the EU logo (See Appendix 3). One of these conferences, held in Cairo, was broadcast on Al Jazeera. It is also unknown whether PCHR used the EU funding to directly pay attorney fees for its litigation. Because of PCHR’s lawsuits, several European countries, notably the UK and Spain, were forced to engage in lengthy and costly legislative processes to amend their laws in order to prevent further exploitation of their judicial systems.
The EU’s process for awarding this grant was largely hidden from public scrutiny. EIDHR’s grant database made no mention of PCHR as a recipient, nor that European taxpayer funding was to be used to facilitate lawsuits against Israeli officials.3 The grant application and details regarding the EIDHR selection process were unavailable to the public, and the EU refused to provide this information, despite numerous requests from NGO Monitor. NGO Monitor was only made aware of this funding after PCHR proudly advertised the role of EU funding in a press release and a 2010 report.
When an independent evaluation contracted by the EU was conducted of the 28 projects funded under the EIDHR death penalty program, the auditors found that there was little substantive oversight for these programs once grantees received funding. For instance, they determined that “information gathered from files and interviews with EC staff show weak monitoring by EC staff and poor knowledge of what projects are actually about, particularly at the Brussels level.”4 The auditors also noted that it was impossible to make any useful comment on the Oxfam-PCHR program, because they found that there were few documents in the file.5 This was the only program out of the 28 that had no documentation or other information available. In 2010, Oxfam and PCHR received a second grant for approximately one million euro. Again, no information is publicly available regarding this grant, nor is any post-funding evaluation, and it is unknown whether PCHR used this money to further its campaign of harassing lawsuits.
The lawsuits facilitated by the PCHR-Oxfam Novib grant caused serious interference with diplomatic relations, and significant embarrassment for Israel and the European countries involved. On several occasions, Israel officials were unable to travel to attend high level meetings with their European counterparts. These cases were often filed without the knowledge of any government officials, and allowed radical political actors to interfere in foreign relations without any sort of local democratic check.
PCHR’s efforts served to radicalize both sides of the conflict, discourage cooperation and coexistence initiatives, and ultimately made a negotiated solution to the conflict more difficult to achieve. The EU funding to attack Israel’s counter-terrorism policies was also an attack that could have very well undermined NATO’s own targeted killing operations against Al Qaeda in Afghanistan and Pakistan. PCHR’s cases bolstered terrorist organizations and those engaging in asymmetric warfare that leads to many civilian casualties. The true extent of the damage caused by this funding, however, will remain unknown due to the lack of transparency.
As part of NGO Monitor’s mandate to document and track European Union and European government funding to the region, NGO Monitor submitted a detailed request in October 2008 to the EU under the Freedom of Information Regulation No. 1049/2001. The request asked for: 1) copies of minutes for Commission meetings relating to funding decisions for grants awarded between 2005-08 to Israeli and Palestinian NGOs under the Partnership for Peace (PfP) and the European Instrument for Democracy and Human Rights (EIDHR) programs; 2) copies of the “scores” for these NGOs; and 3) evaluations of these grants, including twice-annual audits, “annual evaluation plans,” and “Results Oriented Monitoring”.
On 21 November 2008, Hans Duynhouwer, Head of the Unit of the EuropeAid Co-operation Office, denied NGO Monitor’s request, yet gave no specific or concrete explanation for the refusal. Instead, he made a general reference to exceptions contained in Article 4(1)(b) (privacy), (2) (commercial interests) and (3)(undermining of decision making processes) of Regulation 1049. It is important to note that Duynhouwer never invoked a “public security” rationale for refusing discloure.
NGO Monitor appealed Duynhouwer’s blanket refusal on 27 November 2008. On 5 January 2009, Marc Maes, Deputy Head of the Unit, responded, now claiming that the Commission would need more time to process NGO Monitor’s request because they had not been able to identify all the documents falling under the request’s scope. Maes failed to explain how Duynhouwer could have originally rejected NGO Monitor’s application given that he clearly had not examined the documents prior to his 27 November refusal. Throughout spring 2009, NGO Monitor received three more letters from the Commission, continuing to claim that the EU needed more time to comply with the document request.
Finally, on 24 May 2009, more than six months after the request, NGO Monitor received a CD and a single hard copy document from the EU. The CD contained a number of documents entitled “evaluation grids,” “evaluation reports,” “ROM,” and “Audit.” There was no cover letter or explanations provided. Most of the documents were heavily redacted and whited out making analysis of the information nearly impossible. Several of the redactions were unmarked. According to a letter received from the Commission in November 2009, it had concealed names of the evaluators, detailed project scores, evaluator comments, the identity of audit companies, and all monitoring and audit conclusions. In addition, the Commission blanked out any information supposedly not responsive to NGO Monitor’s request, regardless whether there was a statutory basis for doing so.
A review of the documents made it clear that the Commission applied an inconsistent redaction policy. In many places, information that was whited out by the Commission was available elsewhere in the same document. For example, some evaluator names were hidden on one page, yet appeared on a subsequent page in the same document. The same is true for some names of the NGOs applying for funding. In some instances, evaluator comments were included, while in others, they were concealed. Inexplicably, many of the documents had general titles and headings erased, even though these were standard form documents and their templates were publicly available in full on EU websites. On some pages, titles and subsection headings from these standard form documents were blanked out, while on other pages, the same items were visible.
Attached at Appendix 4 are several examples of the redacted documents.
In addition to these confusing and seemingly haphazard redactions, documents relating to many grants falling within the time period of the request were missing.
On 5 July 2009, NGO Monitor wrote to the Commission seeking a list of documents that appeared to have been improperly withheld, as well as requested documents in unredacted form. NGO Monitor also asked for explanations as to why the documents had been provided in redacted form or withheld.
In November 2009, NGO Monitor received a letter from the Commission that proffered several new rationales for the withholding of the requested information – “Protection of public security,” “protection of the privacy and integrity,” “protection of commercial interests” – and rejected any overriding public interest in disclosure. These rationales differed from those originally provided by Hans Duynhouwer in November 2008. Notably, while Duynhouwer never invoked “public security” as a reason for withholding, the Commission was now claiming that all of the requested documents were covered by this exception. The explanation provided by the Commission in the November 2009 letter raised purely hypothetical scenarios to justify its decision. With regards to the new excuse of “public security” and without providing a single example in support, the Commission claimed that
The activities of these NGOs run a high risk of attracting hostile attention in degrees which can go from newspaper or internet articles to hate-mail campaigns and event threats to their moral and/or physical integrity. These threats could also result in troubling the public security.
With regards to the “commercial interests” exception, the EU claimed that
All documents contain detailed information on the NGOs concerned, the funded projects and the way they are or have been carried out. Should this information become public . . . there is a high risk that it would be used by opposing groups or person to damage the reputation of the NGOs and therefore put at risk their ability to properly carry out their activities.
In both instances, the Commission appeared to have broadened the exceptions of 1049/2001 beyond their statutory meaning in order to prevent legitimate public criticism of EU funded-projects.
With regards to the exception of “protection of privacy and integrity,” the Commission claimed that disclosing the identity of officials involved in the grant selection process “could expose them to harassment” and that this “is a real, reasonably foreseeable risk.” The Commission also alleged that “external companies performing audits and the persons performing monitors run a similar risk were their identity to be revealed.” Again, no specific example of such “harassment” occurring was provided. Moreover, NGO Monitor has located many evaluations and audits publicly available on EU websites where evaluator names and the names of external audit companies and monitors were provided. Many of these public audits and evaluations relate to NGO funding in extremely violent conflict zones or highly repressive societies, such as Congo, Sri Lanka, Somalia, Iran, Morocco, Uganda, and Rwanda.6
In the November 2009 letter, the Commission informed NGO Monitor that its means of redress to the Commission’s decision was to “bring proceedings before” the European Court of Justice. On 18 January 2010, Professor Gerald Steinberg filed an application at the ECJ seeking to annul the decision and requesting disclosure of all withheld material within 15 days of the decision.
In response to the application, the Commission filed a Defence on 22 April 2010, responding that “the General Court is not entitled, when exercising judicial review of legality, to issue directions to the institution” (paras. 39-41), and therefore, the Court could not order the Commission to provide any of the withheld documents. Importantly and contrary to its initial claims, the Commission also admitted that the details sought by NGO Monitor “do not concern the process by which the concerned funding decisions are taken,” and therefore, “transparency is granted by the rules of the Financial Regulation” (para. 57). Nevertheless, the Commission continued to press for the secrecy of the requested information and relied on its November 2009 letter as the rationale for doing so.
Steinberg filed a reply on 19 July 2010 to the Commissions defense and also submitted a Request for Further Particulars pursuant to Article 64 of the ECJ Rules of Procedure. The request sought clarification of the Commission’s redactions to the documents and specific evidence that disclosure of the information could harm the interests suggested by the Commission. On 7 October 2010, the Commission filed a reply contesting the request for actual proof of its claims.
On 12 October 2010, the Court notified Steinberg that the written proceedings on the case were closed and that he would be “informed in due course of the further steps to be taken in the proceedings.” Having heard nothing from the court for over a year, Steinberg’s attorneys wrote to the court on 20 December 2011 asking for an update on the proceedings. On 10 January 2012, the Court Registry called one of Steinberg’s attorneys. The attorney was informed that the Registry would not provide a formal reply to the December 2011 letter; that they could not give an update on the case because that decision is relegated to the judges; and that there was no way to contact the judges in order to obtain a case update because the Registry was the only address for correspondence with the Court. Steinberg never got any substantive response to his requests for more information, nor was he ever informed of “further steps to be taken in the proceedings”.
Instead, on 4 December 2012, Steinberg’s attorneys received a copy of a 27 November 2012 order from the Court rejecting the application.
The 27 November decision simply repeated claims made by the Commission regarding the “public security” exception to Regulation 1049. The Court accepted at face value the Commission’s characterizations of the PfP and EIDHR programs, the projects funded under those frameworks, and the alleged reasons for withholding information relating to those grants, without taking any evidence, conducting any hearing, or undergoing any examination of the documents at issue as detailed below. Similarly, the Court never ruled on Steinberg’s Request for Further Particulars, which would have forced the Commission to provide actual proof for its claims. It appears that the Court merely accepted the Commission’s claims without undertaking a substantive review on the merits. This lack of due process does not comport with the ECJ’s role as a check on EU institutions, nor does it bode well for increased transparency and access to information that the Commission deems controversial.
The Court’s decision focused solely on the “public security” exception because according to the Commission, this rationale applied to all of the redacted information and withheld documents.
The decision acknowledges that Regulation 1049 is intended “to grant the public a right of access to documents of the institutions in all areas of activity of the European Union,” and to “mark a new stage” where “decisions are taken as openly as possible.” Moreover, the Court notes that “the right of public access to documents of the institutions is connected with the democratic nature of those institutions” (paras. 51-2).
The court also emphasized that any “exceptions to access to documents must be interpreted and applied strictly so as not to frustrate application of the general principle that the public should be given the widest possible access to documents held by the institutions” (para 53).
54. Furthermore, the examination required for the processing of a request for access to documents must be specific in nature. For one thing, the mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception [citation omitted]. In principle, such an application can be justified only if the institution has previously determined, first, that access to the document was likely, specifically and actually, to undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, that there is no overriding public interest justifying disclosure of the document concerned [citations omitted]. The next consideration is that the risk of the protected interest’s being undermined must be reasonably foreseeable and not purely hypothetical.” (emphasis added)
Unfortunately, these principles do not appear to have been adhered to in the decision. First, the Court makes several general claims simply based on hypothetical assertions made by the Commission:
[Israel and/or the Occupied Palestinian Territories] is unstable, in the grip of great tension and presents a very tense security situation, with the risk of violent confrontations or even of armed conflicts. The NGOs, both Israeli and Palestinian, therefore carry out their activities in difficult conditions. As the Commission states in its written pleadings, the situation is particularly complex for the Palestinian NGOs because the Palestinian Authority of the West Bank and of the Gaza Strip expressly forbids any co-operation between them and the Israeli NGOs. The implementation, by Palestinian NGOs, of projects of the kind covered by the PfP or the EIDHR may be perceived by some radical groups as collaboration with Israel.
Far from being “specific and actual” examples, the “risks” presented were purely hypothetical. No evidence was provided by the Commission that any NGO had been threatened in the past for carrying out a project funded by the EU under the PfP or EIDHR programs. In most cases, these grants involve work that is primarily, if not exclusively, critical of Israel and as mentioned, many projects involve political warfare campaigns. Indeed, the NGOs that receive EU funding are quite proud of it and use this support as an endorsement of their fringe political beliefs and anti-Israel campaigning. Many of these groups prominently display the EU logo on their publications, websites, PR materials, and vehicles. (See Appendix 5 for examples.)
Moreover, NGO Monitor has located many evaluations, documents, and information on EU websites pertaining to grants in Angola, Sri Lanka, Ukraine, Iran, Somalia, Morocco, Rwanda, the Congo, Russia, and other locations where the security environment is far more extreme and dangerous than the Arab-Israeli conflict.7 These publicly available documents not only revealed in-depth discussion of the funded projects, but names of NGOs, evaluators, and auditors were included. In contrast, the Commission provided no evidence as to why it deemed publishing the same information in the Arab-Israeli conflict to be of greater risk than in these other contexts. There is no possible justification for publishing information relating to the world’s most violent and dangerous conflicts, yet somehow, withholding information relating to Israel and the PA is required on the basis of “public security.”
In another section of the decision, the Court claimed that
projects in receipt of European Union funding under the PtP or the EIDHR relate to sensitive subjects which may go against the specific interests of or be in conflict with the convictions of certain groups of persons or bodies, situated both in Israel and in the Occupied Palestinian Territory. It is apparent from the list of projects on the CD-ROM annexed to the contested decision, that, in fact, those projects relate inter alia to such delicate religious, ethical or political subjects as the promotion of the rights of Palestinian women; the equal treatment of men and women in the field of work; sexual and domestic violence; violence against children; respect for human rights; the promotion of the rights of Palestinians through the media; migrant workers who are victims of the slave trade; the relationship between the police and the Arab community; equal rights for Arabs in Israel; the conditions of detention of Palestinians imprisoned in Israel; the promotion of freedom of movement and of the right to a status for Palestinian residents; the combating of torture; media coverage of the Israeli-Palestinian conflict; and the final status of Jerusalem. (para. 82)
Again, the Commission provided any concrete examples of these feared consequences actually occurring. Nor did the EC show how these issues were any more risky or dangerous than in countries where this information is made publicly available. Moreover, the claim that the release of such information would create “public security” concerns within Israel is simply absurd. Israel openly and publicly debates these issues on a daily basis. Israel’s media is among the most open and critical in the world, and there is a robust culture of opposition, far more so than in Europe, and certainly much more than in relation to countries where the EU has disclosed funding information.
Furthermore, many of the funded NGOs dealing with these “sensitive subjects” are very public about their activities. For instance, EIDHR-funded NGOs Al Quds Educational TV (women’s rights), Sawa (domestic and sexual violence), Palestinian Center for Democracy and Conflict Resolution (women protection team), and the Culture and Free Thought Association (gender based violence) are active on social media and have websites detailing the work of their projects. Another NGO, the Early Childhood Resource Center, which deals with child abuse in Palestinian society, even published on its website a complete copy of its Results Oriented Monitoring Report (an example of one of the documents NGO Monitor requested from the Commission, but was withheld). (See Appendix 6). There is no basis, therefore, for the Commission to claim that it had to censor and withhold the information requested by NGO Monitor on the pretense that the funded projects address sensitive topics.
Strikingly, many of these “sensitive” topics relate to significant issues in the peace process between Israel and the Palestinian Authority. It is simply appalling that the Commission would justify the suppression of information that directly impacts the daily lives of Israelis and Palestinians in so many critical ways. Israelis, Palestinians, and EU taxpayers have the right to know what exactly how taxpayer money is being spent by the Commission to address these issues. They have a right to know if this money is being co-opted by terrorist organizations or other groups working against the peace process. They deserve to be aware of programs funded by the EU that are aimed at manipulating their media. And most importantly, they have the right to know whether these programs are effective and actually contribute to peace, rather than inflaming the conflict.
The strangest and most disturbing aspect of the Commission’s withholding of the requested information was its claim that the activities of the NGOs in question “run a high risk of attracting hostile attention in degrees which can go from newspaper or internet articles to hate-mail campaigns and even threats to their moral and/or physical integrity.”8 The Commission alleged that such threats could (again, a hypothetical) “troubl[e] the public security.” The Commission stated further that disclosing the withheld information could put information in the public domain that “could be used to exert different degrees of pressure as described above, including threats to the integrity of all persons concerned.”
The Court, however, conflated and broadened the Commission’s rationale to declare a new legal principle that not only “threats to moral and/or physical integrity” could disturb the public security (although even these reasons should be specifically explained), but that even “the publication of newspaper or internet articles [and] hate mail campaigns” (para. 76)9 can also fall under this exception!
For those who value the core right to free expression, it is highly disturbing that the Court would justify the withholding of information based on the risk of a “newspaper or internet article.” It is even more concerning that such publication could be deemed as “disturbing of public security.” Such a far-reaching pronouncement has serious implications. Based on this strange rationale, almost any piece of information could be withheld by the Commission, lest it lead to newspaper or internet articles, or “hate mail” campaigns. This decision appears to eviscerate the plain meaning of Regulation 1049 and the notions of openness and transparency within the European Union.
As mentioned, the Commission’s handling of NGO Monitor’s document request and the court proceedings relating thereto were marred by a failure to comply with due process norms.
Failure to Provide Documents in a timely manner
As detailed above, the Commission took more than six months to reply to NGO Monitor’s request for documents. Throughout that time, the Commission made unsupported claims regarding its review of the documents at issue, and it regularly changed its rationales for why documents and certain information were withheld. The documentation that was provided reflected an inconsistent and inexplicable policy of redactions.
The Court itself agreed that the Commission’s handling of NGO Monitor’s request was improper and “must be regarded as an implicit decision to refuse access” (paras. 97, 100).
Nevertheless, rather than find in favor of Steinberg’s application on this basis, the court criticized Steinberg for bringing a case to the ECJ (as per the instructions in the Commission’s November 2009 letter to NGO Monitor) seeking an annulment of the actual Commission decision, rather than bringing an action solely focused on the Commission’s failure to comply with the time limits set forth in Regulation 1049 (paras. 100-01). The Court fails to explain how filing a case on the Commission’s compliance with time limits, while ignoring the exceptions raised by the Commission, would have facilitated NGO Monitor’s request for documents. If anything, it appears the Court was penalizing Steinberg for filing only one lawsuit instead of two! The process suggested by the Court would have led to two cases before the ECJ – one dealing with the 15-day time limit and one with the substance of the request. This strange argumentation highlights a lack of efficiency and the refusal to deal with the merits of this case.
Failure to Take Evidence on the Merits
No Oral Hearing
Proceedings before the General Court are to have a written and an oral component. (See Title Two of the Rules of Procedure of the General Court). However, no oral hearings were held on the case, preventing Steinberg from having the opportunity to present his case to the court in an open process.
The Court appeared to justify this procedural irregularity on the basis of Article 111 of the Rules of Procedure of the General Court, claiming it can “give a decision on the present action without opening the oral procedure.” In examining ECJ case law, however, Article 111 appears to be invoked primarily in cases where the statute of limitations has expired. And in many of these cases, the court specifically determined that it was unjust to preclude an oral hearing on the merits. It does not appear that the ECJ has ever applied Article 111 in order to avoid taking and reviewing any evidence on the merits.
Most disturbing, however, is that the court never notified Steinberg of its decision to apply Article 111 to deny Steinberg the right to an oral hearing prior to the issuance of the November 2012 ruling. In fact, for more than two years (12 October 2010-27 November 2012), the Court engaged in no contact whatsoever with Steinberg, with the exception of a short phone call from the Registry (described on pg. 8) responding to the December 2011 letter, telling Steinberg’s attorney that he had no way of getting any update from the Court on the case’s progress. Contrary to the Court’s claim on 12 October 2010 that Steinberg would be “informed in due course of the further steps to be taken in the proceedings,” no information ever came. It is an abuse of process to deny the right to oral argument, as provided for in the Court rules, but not inform Steinberg of that decision nor give him any opportunity to challenge that decision.
Request for Further Particulars
The court also violated Steinberg’s due process rights by failing to rule on his request for particulars from the Commission under Article 64 of the Rules of Procedure. Instead, at the end of its opinion, the Court denied Steinberg’s request for further particulars because it was made moot by its decision to reject the application (para. 106).
This denial turns judicial procedure and due process upon its head. Steinberg filed his request for particulars in July 2010. Regulation 1049 requires proof “that access to the document was likely, specifically and actually, to undermine the protected interest” proffered by the Commission. Because the Commission had not provided any specific or actual evidence and had only provided general and hypothetical reasons for the withholding of the requested information, Steinberg asked the Commission, as provided for in the court rules, to provide specific evidence and actual proof that the rationales for withholding documents were in fact legitimate. One would have expected that the Court would have wanted to view such evidence as well.
It makes no sense at all that the Court ruled on the application for particulars after the decision was rendered. The point of evidence collection is to facilitate the judicial process, so that court can make informed judgments. There does not seem to be a point of making a decision relating to the collecting and presentation of evidence after a decision has already been made. Under this rationale, only parties that have obtained a favorable ruling on their application from the Court would be entitled to then collect and present evidence.
By failing to address the Request for Further Particulars in a timely fashion, the Court denied Steinberg the opportunity to gather evidence for his case.
This denial of the request for particulars was particularly egregious given that the Court claimed that “the applicant in no way disputes that the facts [relating to the characterization of the PfP and EIDHR programs or that the withheld information was necessary to protect ‘public security’]” (para. 83). This claim is false. Steinberg strenuously objected to these facts not only in his numerous letters to the Commission throughout the entire process for document disclosure, but he also did so in his initial application to the Court and in his response to the Commission’s defence. Indeed, if Steinberg had agreed with these facts, it would not have been necessary to file an application in the first place or to seek further particulars from the Commission demanding evidence of these claims.
The directing of tens of millions of European taxpayer euros annually to fund political advocacy groups operating in the Arab-Israeli conflict is of critical importance to Europeans, Israelis, and Palestinians. They have the right to know to whom this funding is being awarded, the projects this funding supports, the rationale behind the funding, and whether the funded projects are effective and advance EU policy goals. Instead of providing this information, however, the EU has been operating under a veil of secrecy in order to prevent stakeholders from being able to independently evaluate and respond. NGO Monitor hopes that its efforts to document these activities, including its freedom of information requests and the subsequent court proceedings, will contribute to lifting the veil and making the EU more transparent and accountable.
- Additional examples are provided in Appendix 2.
- Compendium of EIDHR Activities 2000-2006 by Location, at 662, available at http://ec.europa.eu/europeaid/what/human-rights/documents/updated_report_by_location_en.pdf
- European Initiative for Democracy and Human Rights Evaluation on the Abolition of Death Penalty Projects, 4 April 2007, at 5, available at http://ec.europa.eu/europeaid/what/human-rights/documents/eidhr_evaluation_death_penalty_final_report_4april07_en.pdf
- Ibid at 84.
- See e.g., European Initiative for Democracy and Human Rights Evaluation on the Abolition of Death Penalty Projects, supra n. 4; EIDHR Evaluation on its Support to the Establishment and Functioning of the ICC, December 2008, available at http://ec.europa.eu/europeaid/what/human-rights/documents/final_report__main__december_2008_en.pdf; Capitalisation study of the EIDHR Programme in Angola, 23 March 2010, available at http://ec.europa.eu/europeaid/what/human-rights/documents/angola_eidhr_capitalization_study_2010_en.pdf
- See e.g., supra n. 6.
- The commission does not define what constitutes a threat to “moral integrity” or how such a threat “undermines public security.”
- “It is apparent from the contested decision that the refusal of access to the blanked out passages of the requested documents is, in essence, based on the apprehension that the detailed information on the projects in question which they contain could be used to exert pressure on the persons concerned, which may range from the publication of newspaper or internet articles to hate-mail campaigns and even threats to their physical or moral integrity, and thus disturb public security.” (para. 76)