EU secrecy proposals, Document no 4


Statewatch press release, 26 April 1999


Proposals drawn up by senior officials from the Council, Commission and the European Parliament are seeking to deny citizens access to documents in direct contravention of the Amsterdam Treaty.

Statewatch editor Tony Bunyan commented:

"These proposals would set the clock back and reimpose the secrecy of the pre-Maastricht days, they have no place in a democracy.

They have all the hall-marks of a "Brussels stitch-up", of a deal between the officials to exclude citizens and civil society from the decision-making process and from any knowledge of the ongoing practices of EU bodies and agencies.

The proposals even suggest that an "embargo system" should be created and access to documents delayed to "avoid any interference in the decision-making process" and to prevent "misunderstanding". In short to exclude citizens from finding out what is to be adopted in their name until after it had been agreed.

Such ideas seek to reimpose the pre-Maastricht "lobby-system" whereby "Brussels-based" trusted sources are given privileged access to information.

The Amsterdam Treaty was intended to enshrine the right of access to documents following years of conflict especially between the Council and citizens.

Let us hope that the European Parliament and those EU Member States in favour of openness will throw these proposals out. And the Commission should know better, has it learnt nothing? Secrecy breeds corruption, cover-ups and the abuse of power.

Citizen and civil society have to demand that the right of access to documents is not subverted and that the spirit of the Amsterdam Treaty is followed to the letter.

- ends -

Statewatch monitors civil liberties in the EU. It is an independent group of researchers, journalists, academics, lawyers and community activists founded in 1991. Statewatch took seven cases to the European Ombudsman against the Council concerning refusal of access to documents and "won" six-and-a-half of them.

Background notes

1. The joint Code of Conduct, between the Council and the Commission, was agreed in December 1993 and the Council's implementing Decision on public access to documents was adopted in the same month.

2. Between December 1993 and the adoption of the Amsterdam Treaty in June 1997 a number of successful cases were taken to the Court of First Instance (eg: John Carvel, Swedish Journalists Union) and to the European Ombudsman (Statewatch, six cases, and Steve Peers, three cases). Each of these "victories" helped to limit the Council's tendency to refuse access to documents.

3. The Amsterdam Treaty, in Article 255, enshrines the principle of access to documents, Art 255.1 says:

"Any citizen of the Union, and any natural person or legal person residing or having a registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and conditions to be defined in accordance with paragraphs 2 and 3."

4. Central to the current 1993 Code and Decision is, in the Decision: Article 1.2:

" "Council document" means any written text, whatever its medium, containing existing data and held by the Council.."

and in the Code of Conduct:

" "Document" means any written text, whatever its medium, which contains existing data and is held by the Council or Commission."

These definitions established the principle that every document held by the Council could be applied for by the citizen - of course, the Council could refuse access under the allowed exceptions in Articles 4.1 and 4.2 of the current rules. This principle has been at the centre of many of the cases/complaints against the Council.

4. June 1997: Amsterdam Treaty agreed

5. December 1997: meeting of Secretary Generals of the Council, Commission and European Parliament which established "informal working party". This report from the Commission summarises the recommendations of this working party.

6. The Commission has been entrusted with putting forward a new Regulation setting out the common principles to be followed by the three institutions. This has to be agreed within two years of the adoption of the Amsterdam Treaty.

Notes on the Commission's Draft Communication:

1. Internal documents

The report then seeks to create a distinction between accessible "documents" and internal documents.

It says "in order to facilitate the implementation of the right of access, it would be advisable to define what is meant by an "institution's documents" in new legislation."

The report suggests three categories - the first two accessible the last "excluded": "it is proposed to exclude working documents drawn up as contributions to internal deliberations". This category is defined as:

"* Working documents drawn up as contributions to internal deliberations (documents of a purely internal nature: minutes of meetings, briefings, service's opinions, mission reports, "reflection" notes, notes setting out the personal view of officials etc.)."

2. Section 4 of the report covers: "Beneficiaries of the right of access"

The officials' report is almost cynically when in the same sentence and accompanying footnote the report says:

"This legislation is aimed at the citizens. Even if the national administrations or other Community institutions or bodies are not the intended beneficiaries of this right of access, this should not be referred to explicitly in the text.(Footnote)"

The Footnote says:

"It would be useful to set out the situation regarding the privileged access to institutions' documents enjoyed by the European Parliament, the Council, the Court of Auditors, the European Ombudsman, the Member States and the national administrations and judicial systems, where necessary by means of agreements with them to facilitate their access subject to the respect of certain commitments."

This is what the Council has argued in the ECJ since 1993 - namely that the institutions should have control over their documents, especially over Member States laws and traditions of access.

3. Exceptions to the right of access

It states that: "it is proposed that the current system be improved as follows:"

1. Article 4.1: That the "obligatory" exceptions should be "better targeted" for example putting:

"the stability of the Community juridical order under the concept of public interest"

and possibly:

a specific exception for "justice and home affairs".

2. Article 4.2: confidentiality of institutions' deliberations.

Works on the principle that a whole swathe of documents are already excluded and that only "accessible documents" be considered.

"In connection with this exception, it is proposed that an "embargo" system be created to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of a document from giving rise to "misunderstandings" or jeopardising the interests of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision by the Commission, or, where appropriate, the European Parliament or Council).

These common principles will require internal implementing provisions within the three institutions in order to provide for the various scenarios."

4. The document ends with:

"Compatibility of the "hard core" of Article 255 of the EC Treaty and a more "flexible" system regarding public access to Commission, European Parliament and Council documents"

This envisages:

i. The "hard core" and "strict provisions of Article 255"

and then

ii. A discretionary, flexible system, which would be:

"without granting a formal right of access (i.e. without granting a right to legal recourse)"

This could cover: documents of an internal nature; application from outside EU; giving access to the documents of other Community institutions, bodies and agencies.

5. In a "Technical Annex" on "Exercise of the right of access" it says:

"In due course arrangements for the following aspects of implementing the right of access similar to those already in operation could be foreseen."

The term "similar" is a bit inaccurate as the institutions have made two significant changes:

i) it states:

"provision must be made for an amicable solution in the event of repetitive requests or requests for voluminous documents."

Statewatch successfully took a case to the European Ombudsman over the Council's interpretation in the current Decision on public access when they tried to apply the term "repeat applications" to application for different documents concerning the same subject area.

Statewatch is concerned with civil liberties in the EU and therefore nearly always apply for documents concerning "justice and home affairs".

The European Ombudsman ruled that the term "repeat applications" could only be used to refuse requests concerning applications for the same document on more than one occasion.

However, the Council argued, unsuccessfully, that the French term "repetitif" could be used - which has an ambiguous meaning.

Now, the institutions are trying to turn the clock back and introduce "repetitive applications" which in the light of experience would be applied to requests for documents concerning the same subject area.

Although the term "amicable solution" is used the current "fair solution" provision means the Council decides without consultation with the applicant.

ii) it is also intended to introduce "a clause attributing copyright to the institution". If employed liberally this would simply mean acknowledging the source of the information and faithfully reproducing the text. If employed in a controlling way it could restrict the flow of information.