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European Union


Now we are told – eleven years later

Two buddies helping each other out

German chancellor Gerhard Schröder asked EU-Commission to help build an airport runway in an environmental protected area outside Hamburg. Commission president Romano Prodi did as told, we know now.

Chancellor Schröder wrote in a letter to Commission president Prodi:
I would be extraordinarily grateful if you personally could make sure that there is no legal objection issued from the Commission.”
The German leader was afraid the Commission would object to the building of a runway to an airplane factory in an area called Mühlenberger Loch. The area was protected by EU-rules for the conservation of wild fauna and flora.
Gerhard Schröder wanted to make sure the construction work could go ahead in spite of the protection. More than 4000 jobs are stake, only in the Hamburg region, he wrote to Prodi.
On the letter from Schröder Prodi made a handwritten note in block letters: ”RAPIDAMENTE” (quickly) before passing the request on to his aids. (For a scanned copy of the letter, see under Document).

No national veto

The reason we now have access to the correspondence is a lengthy battle for transparency finally won in the European Court of Justice.
After more than eleven years a requested document was forwarded to the German organisation Internationaler Tiershutz-Fonds, an affiliation to the organisation IFAW (International Fund for Animal Welfare).
Scott Crosby, a lawyer representing the German NGO during the process regards the final outcome of the IFAW-case as rather important landmark.
”Member states do not have a right to veto disclosure of documents sent to the EU-institutions,” Crosby told participants at the conference Dataharvets+ in Brussels in the beginning of May.

In two rounds

The IFAW-case actually consists of two parts. First there was the legal battle to dismiss the argument that Germany could tell EU-institutions how to handle German documents.
At first the General Court (at the time the Court of First Instance) decided according to the German demands. This judgement was then appealed by Sweden, supported by Finland leading to a reverse decision by Court of Justice in 2008.
Member States ”may request” that their documents are not disclosed, but they do not have ”a general and unconditional right of veto”, the judges made clear.
Then came a second round.

To protect German policy

Germany and the Commission still did not want to reveal the lobbying letter, arguing the content should be hidden to protect ”the economic policy of the Community or a Member State”, a reason to refuse disclosure laid down in the access rules for EU-institution (Regulation 1049/2001, article 4.1 a third indent).
This argument was first accepted by the General Court, but then appealed and later set aside by the Court of Justice
The reason why?
The General Court had not itself read the disputed document!
The lower chamber was therefor ”not in a position to assess in the specific case whether access to the document could validly be refused”, the higher instance dryly remarked.

Operation succesful, the patient died

Then did the German NGO finally get the requested document? Yes they did, some one and a half year later. Things have a tendency to take time in matters like this.

All in all, transparency won and the attempt to hide Gerhard Schröder's pressure letter failed.
Only catch is that the process took eleven years.
The controversial runway was built in the mean time.
Neither Gerhard Schröder nor Romano Prodi holds their official positions any longer.


Staffan Dahllöf


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