Memorandum by Statewatch
This explanatory memorandum (EM) and the Decision
of the Council on 14 August raises three substantive issues of
A. why was it necessary?
B. how was it adopted?
C. what is its effects
A. Why was it necessary?
The explanatory memorandum gives no explanation
as to why the Decision of 14 August (popularly known as the "Solana
Decision") was necessary. The 1993 Decision on access to
documents in Article 4.1 allows the Council to refuse access
"disclosure could undermine:the protection of the
public interest: (public security, international relations .
Many commentators, including the European Ombudsman,
are of the view that the existing code of access was quite sufficient
for the Council's purposes. This being especially so as the Council,
Commission and European Parliament are currently discussing a
new Treaty obligation on public access to documents which has
to be in place by May 2001.
The reasoning in the explanatory memorandum is
quite frankly disingenuous. The Council and member states have
known at least since the Amsterdam Treaty was signed in June
1997, or the Cologne Summit in June or the Helsinki Summit in
December 1999 that the EU was intending to adopt a military role
in conjunction with NATO. All of this was known when the Council
adopted on 19 December 1999 a new measure on access extending
the public register on documents to include classified documents
(subject to certain conditions).
In our view the Council and member states had
known for three years that this situation would arise, namely
that the European Security and Defence Policy was to be introduced
and logically citizens might seek access to documents setting
out policies being adopted in their name.
The 14 August Decision was unnecessary especially
in light of the current discussions on a new code.
B. How was it adopted?
It is interesting to note in the explanatory memorandum
that the initiative came from the "Council Secretariat [which]
is keen to push through amendments to the texts as quickly as
possible". This confirms our information that the initiative
came from Mr Solana and not from member states.
The statement that the proposal was "taken
directly to COREPER" does not match the information we have.
A draft was produced, dated 12 July, just before the scheduled
meeting of the Working Party on Information (WPI) on 14 July.
The WPI, representing the member states, would expect to initiate
any changes to the 1993 Decision or certainly expect to be given
the time to consider all the implications of any proposed change.
It is understood that the meeting on the 14 July was quite acrimonious.
The Explanatory Memorandum from the Foreign Office
is dated 14 August 2000the day that the written procedure
to change the 1993 Decision was completed. There was clearly
no intention by the government to consult parliament or civil
society on the sweeping changes introduced by the Decision of
26 July in COREPER.
The agreement of the "Solana Decision"
in COREPER on 26 July and the decision to adopt it by "written
procedure"instead of waiting until the next General
Affairs Council on 18 Septembersmacks of a deliberate attempt
to circumvent any parliamentary consultation or "fuel public
discussion" on the issue. The measure was adopted by "written
procedure" on 14 August and came into effect with its swift
publication in the Official Journal on 23 August. When the European
Parliament resumed on 28 August the measure was in place.
It is totally unacceptable in a democracy that
such a far-reaching decision on citizens' rights should be taken
without any reference to parliamentsnational or Europeanand
without any consultation with civil society.
C. What is its effect?
Mr Solana's intentions were clear from a report
at the end of June which said:
"Regarding public access to documents and the public
register of Council documents, proposals have been made in COREPER
to amend both Decisions in order to exclude documents regarding
security and defence from their sphere of action. A similar exception
should be incorporated in the proposed transparency regulation
that is being discussed at present. The possibility of establishing
specific rules regarding police and judicial cooperation is being
examined at present." (Note for the Committee of Permanent
Representatives regarding the security plan for the Council,
SN 3328/1/00, 30 June 2000)
The new Decision on public access to Council documents,
adopted by the Council by "written procedure" on 14
August substantially amend the 1993 Decision and changed it dramatically.
First it amends the fundamental statement in Article 1 which
stated that "the public shall have access to Council documents"
by excluding, permanently whole categories of documents from
access where they are:
"classified as Tre"s Secret/Top Secret, Secret and
Confidential . . . on matters concerning the security and defence
of the Union or one or more of its Member States or on military
or non-military crisis management . . ."
Article 2 is amended so that any document which
"enables conclusions to be drawn regarding the content of
a classified document" cannot be released without the "prior
written consent of the author of the information". This
gives NATO, the USA, any non-EU state or organisation a veto
on the release of an information moreover, this provision
applies to any document whether it is classified or not.
The effect of this clause and the term "non-military
crisis management" (which is not defined) will potentially
"contaminate" whole areas such as police cooperation
and border controls falling under justice and home affairs. This
is the more so as the EU Council meeting in Feira in June agreed
that the EU should set up a 5,000-strong paramilitary police
force for use in Europe and outside.
Article 4.1, the exceptions under which documents
can be refused, is amended to include: "the security and
defence of the Union or one or more of its Member States or on
military or non-military crisis management".
Article 5 is amended to exclude the EU Press Officers
on the Working Party on Information from considering any documents
which are highly classified or any group of documents which have
become "contaminated" unless of course they have been
The second measure is the Decision of the Secretary-General,
Mr Solana, on Thursday 27 July, to amend the 1995 Decision on
the "protection of classified documents". This adds
the previously secret category of Tre"s Secret/Top Secret
to the classifications (who disclosure "could cause extremely
serious prejudice to the essential interests of the Union").
However, these Solana amendments highlight the effect of the
existing (and unamended) Article 3.1 in this Decision, it says:
"Where a number of items of information constitute a
whole, that whole shall be classified at least as highly as its
most highly classified constituent item."
Thus if a series of documents concerning para-military
policing or border controls which might usually be simply "Limite"
and accessible to the public contains a single reference to a
"Restricted" or "Confidential" document then
all the documents would automatically be refused.
This Decision is under the sole prerogative of
the Secretary-General yet, for the first time, there is direct
linkage between this decision and the decision to change the
1993 Decision (addition to Article 2).
The third new decision sets out a procedure to
be followed concerning access to classified documents. Top Secret,
Secret and Confidential are permanently excluded. Only staff
in the General Secretariat of the Council security vetted will
be able to see documents at the stage of the initial request.
Confirmatory applications for documents classified simply as
"Restricted" (where "unauthorised disclosure .
. . would be inappropriate or premature") will no longer
be decided by the Working Party on Information but by the working
party which produced it (officials on working parties directly
working on the issue are unlikely to put openness above secrecy)
and must have been security-cleared.
Details of the fourth measure to adopt a Framework
decision, under Article 34.2.b. of the TEU, to provide for legal
sanctions against leaking are not yet known. However, the Solana
"security plan" of 30 June says this will be based
on Article 194 of the Euratom Treaty (1957). Article 194, written
at the height of the Cold War, says that all officials who:
"acquire or obtain cognisance of any facts, information,
knowledge, documents or objects which are subject to a security
system . . . shall be required even after such duties or relations
have ceased, to keep them secret from any unauthorised person
and from the general public."
The scope of this Article goes beyond documents
and extends to the passing on of "knowledge". It goes
on to say the Member States have to treat any infringement as
"within the scope of its laws relating to acts prejudicial
to the security of the State . . . [and shall] prosecute anyone
within its jurisdiction who commits such an infringement."
National laws in the EU vary on this issue, most
only target the official in question who has leaked information
but in the UK such an action, under the Official Secrets Act
(OSA), would also criminalise the recipient of the information,
for example a journalist (Ireland also has a UK-style OSA).
The amended Decision on public access to EU documents
permanently excludes whole categories of documents from public
access. It does not even make a distinction between policymaking
(which should be public) and operations (which usually should
not). Moreover, the Decision will "contaminate" other
policy areas like justice and home affairs, trade and aid. If
the new measure to be agreed between the Council, Commission
and European Parliament includes the "Solana Decision"
it will fundamentally undermine any claim that it "enshrines"
the public's right of access to documents in line with the Amsterdam
Solana report on Security Plan for the Council proposes "modifying"
the 1993 code on access to documents.
The General Affairs Council refuses a request for access
to documents by Jelle van Burren with Sweden and Denmark voting
against the decision. It said:
"Although it contains only a very brief summary of the
results achieved in this meeting, the Council considers that
its release would run contrary to the public interest in the
progress of the framing of a European Defence Policy, as it is
foreseen in Article 17 of the Treaty on European Union.
In fact, an essential factor for progress in the shaping of
a European Defence Policy is the establishment of a mechanism
allowing close cooperation with NATO, in the context of this
cooperation, the Council and some of its preparatory bodies will
have to treat highly confidential information whose unauthorised
disclosure would have serious consequences for the security and
defence of the European Union and NATO. The latter will not accept
this cooperation if the Council does not set up an absolutely
reliable and credible system for protecting such information.
The Council and its General Secretariat are currently examining
how best to achieve this objective with a view to the conclusion
of a Security Agreement with NATO."
Council letter to Jelle van Burren, dated 26
June (agreed at the General Affairs Council on 10 July) in response
to a request for access to the Outcome of Proceedings of the
Interim Military Working Group (IMWG). The document is not a
classified one (Top Secret, Secret, Confidential or Restricted)
but is simply "LIMITE", a category of documents normally
Solana sends "Working Document", dated 12 July, on
"Consolidated version of decision 93/731 TEC with the proposed
modifications" to EU governments' representatives in Brussels.
Scheduled meeting of the Working Party on Information (WPI)
where the EU governments are represented by the Press Officers
from the permanent Brussels delegations. After a heated discussion
two member states, Sweden and Finland, walk out of the meeting.
The ANTICI Group (Brussels-based high-level representatives
of the EU governments) has a scheduled meeting to prepare for
the COREPER meeting on 19 July. It looks at two reportsone
on options, the other the draft Decision. It agrees the report
on the Decision and that it should go to the following COREPER
II meeting on 26 July.
COREPER II agrees the new code with 10 voting in favour,
three against (Sweden, Finland and Netherlands) and two abstentions.
The same morning EU exchanges letters with NATO on the "security
The new Decision is adopted by the EU under the "written
"Release of preparatory documents like the one in question
could fuel public discussion on the subject and raise questions
among the Council's partners as to the latter's reliability as
regards the respect of its obligations under the security arrangements."
Council letter to Tony Bunyan, 14 August 2000 in response
to a request for access to the document setting out the options
for changing the 1993 Decision put before the COREPER meeting
on 26 July.
The "Solana Decision" is published in the Official
Council Decision amending Decision 93/731/EC on public access
to Council documents and Decision 2000/23/EC on the improvement
of information on the Council's legislative activities and the
public register of Council documents, 10702/00, 31 July 2000;
Procedure for preparing decisions on access to classified documents
in accordance with Article 5 of the Decision 93/731/EC as amended,
10513/1/00, 25 July 2000; Decision of the Secretary-General of
the Council, High Representative for common foreign and security
policy of 27 July 2000 on measures for the protection of classified
information applicable to the General Secretariat if the Council,
10703/00, 8 August 2000; Note for the Committee of Permanent
Representatives regarding the security plan for the Council,
SN 3328/1/00, 30 June 2000.
28 September 2000
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