"Solana Decision" back on the agenda - new draft Council common position



It is not without significance that the French Presidency sent out the latest version of the Council's draft common position on 17 November - the day after the European Parliament had adopted its first reading report on citizens access to EU documents - because it re-introduces the now infamous "Solana Decision" in a different and more hidden form.

The adoption of the "Solana Decision" by the Council in the summer - without consulting national or European parliaments or civil society - led to outrage at the way the decision was made and its far-reaching effects on access to documents. The European Parliament and the governments of the Netherlands, Sweden and Finland are taking the Council to the European Court of Justice over the decision.

Taken aback by the scale of the reaction the Council argued publicly - including at a hearing held by the European Parliament on 18 September - that the "Solana Decision" was only "temporary" until the new code of access was adopted. The Council was very concerned that the hostile reaction to the "Solana Decision" did not influence the European Parliament's discussion on its report on access. The media and many MEPs duly repeated the Council's "spin". Then the day after the European Parliament report was adopted the "Solana Decision" was re-introduced.

Unless the European Parliament's report is accepted the Council's "common position", when adopted, will form the basis of the discussion on the new code.

"Solana Decision" re-introduced

The new draft Council common position now includes all the new limits on access to documents in the "Solana Decision":

1. Article 1.3: allows institutions to determine "categories of documents" to be accessible to the public, and by implications those that will not be accessible.

2. Article 2.2: introduces "special" documents to receive "special procedural treatment"

3. Article 3.b: defines "special documents" in the "field of security and defence" and the broad term "defence" (and the exception under Article 4.1: "military matters") can be taken to include both "military" and "non-military crisis management".

4. Article 4.a: exceptions include "military matters" and "international relations".

5. Article 4.3: gives a veto over access to third parties.

6. Article 5.1.para 2 and Article 6.1.para 2: say that the officials drawing up documents will consider initial and confirmatory applications for "special documents", not the Working Party on Information as at present (the WPI is comprised of the press officers from the permanent delegations of EU member states based in Brussels).

7. Article 9.2: excludes from the public register any reference to documents falling under one of the exceptions.

8. In addition the Council's position had to be read in conjunction with the decision of the Secretary-General, Mr Solana, taken 27 July, to amend the "Decision on the protection of classified documents" - this changed the 1995 Decision on this subject. Decisions of this kind are simply made by the Secretary-General of the European Council without any consulting at all. The 27 July change added the classification of "TOP SECRET". But it also highlighted the effect of the existing (and unamended) Article 3.1 of the "Decision on the protection of classified documents" which 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"

The effect is this provision is that if any set of documents contain a single classified document then all the documents have to be excluded from access. This could cover, for example under the "non-military crisis management" heading, documents on the EU's planned para-military police force, border controls, trade and aid.

EU Official Secrets Act?

The report from Solana office in June (SN 3328/1/00, 30.6.00) said that the EU should adopt a Framework Decision, under Article 34.2.b., to provide legal sanctions against leaks of information. The report said this should be based on Article 194 of the Euratom Treaty drawn up at the height of the Cold War. Article 194 says:

"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 for 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 being:

"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 Acts (OSAs, would also criminalised the recipient of the information for example a journalist (Ireland also has a UK-style OSA). Text of: Euratom Treaty, Article 194

How many documents are going to be excluded from access?

Under the current 1993 Decision on access to EU documents (before Solana) applicants can ask for all documents subject only to specific and narrow exceptions. Now the list of documents to be excluded from access and from the public registers is growing fast. Under the Council's draft common position the following would be excluded:

a. "Space to think" documents:

- discussion documents
- opinions of departments
- unfinished documents
- documents in preparation
- [texts with] contents which express personal opinions reflecting views as part or preliminary consultations
- deliberations within the institutions

b. Documents covered by "third party" vetoes including those from:

- EU member states
- non-EU states (eg: USA)
- international organisations and agencies (like NATO and ILETS)

and the following will be subject to special procedures:

c. All "Top Secret", "Secret" and "Confidential" documents concerning:

- foreign policy
- military policy
- non-military crisis management (including policing, border controls, trade and aid)


Below follows:

A. Analysis of new draft of the Council's common position based on current rights under the 1993 code of access (prior to the "Solana Decision")
. See also: earlier draft of common position (pdf) & analysis

B. Full text of new draft common position (17.11.00)

A. Analysis

NON-PAPER, 17.11.00

ARTICLE 255

Article 1
General principles and beneficiaries
1. Any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles, limits and conditions defined in the Regulation.
2. The institutions may under the same conditions grant access to documents to any natural or legal person not residing or not having its registered office in a Member State,
3. The institutions shall according to their own Rules of Procedure determine which categories of documents will be directly accessible to the public, especially those relating to their legislative activities.
4. This Regulation does not deprive citizens of the Union of rights concerning access documents acquired under instruments of international law.

Comment
1.1: No change. Gone is a positive statement in the Commission draft that applicants could apply: "without having to cite reasons for their interest".
1.2: New positive addition, making documents accessible to people outside the EU
1.3: New and potentially negative: the reference to "which categories of documents will be directly accessible to the public" is best understood by reading this as categories of documents are to be excluded from public access ("Solana Decision")
1.4: New: this is probably a reference to the Aarhus Convention on environmental information under which applicants will have wider access than under this new code.

Article 2
Scope
1. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up by it or received from third parties and in its possession, in all areas of activity of the Union.
2. Documents which are special on account of the sensitivity of their content will receive a special procedural treatment.

Comment
2.1: Adds documents from "third parties" but gives them the right of "veto" over access. The general commitment that access will apply to "all documents" is completely undermined by later provisions.
2.2: New provision re-introducing the "Solana Decision" with an entirely new category of "special documents".

Article 3
Definitions
For the purpose of this Regulation
(a) "document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); only documents concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, excluding texts for internal use such as discussion documents, opinions of departments, unfinished documents or documents in preparation and contents which express personal opinions reflecting views as part or preliminary consultations and deliberations within the institutions, shall be covered;
(b) "special documents" shall mean documents in the field of security and defence classified as "Top Secret", "Secret" or "Confidential" because of the sensitivity of their content;
(c) "third party" shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and non-member countries.

Comment
3.a: Entirely new and negative change to current 1993 Decision. Documents giving officials the "space to think" are permanently excluded from public access. The definition of the "space to think" category of documents is widened from the earlier draft (eg: "unfinished documents) and is wider that the Commission's draft provision.
3.b: Entirely new and negative change: Introduces "special documents" covering "security and defence" which can be taken to mean "military matters" (see exceptions) and including "non-military crisis management" - the "Solana Decision".
3.c: New and wider definition of "third party". No change from earlier draft - gives EU member states the status of "third parties" and therefore the right to withhold access to documents being discussed at EU level and a similar "veto" is available to non-EU bodies such as NATO.
Overall: Gone are the definitions of institutions (Commission/earlier draft: a, b, c & d) including for the Council "its preparatory bodies and its General Secretariat" - which nine member states were at that stage keen to keep in and which the Council Legal Service was strongly opposed to, the Legal Service and the General Secretariat appear to have won this issue.

Article 3 A
Applications
1. Applications for access to a document shall be made in writing in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document.
2. If an application is not sufficiently precise the institution shall ask the applicant to specify the application and assist the applicant in doing so, e.g. by providing the applicant with information on the use of the public registers of documents.
3. In the event of general and repetitive applications or applications relating to very large documents or a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.

Comment
3A.1: No change. Slightly better than earlier draft with the deletion of "with reasonable administrative effort"
3A.2: Reformulated. This appears to place an onus on the institution with an obligation to help applicants, but access to public registers does not include access to documents which will not be on the register
3A.3: Major negative change. "Repeat applications" (which the European Ombudsman ruled in a Statewatch case only applies to applications for the same document) is replaced by "repetitive", that is applications concerning the same subject area. "Very large number of documents" is added as is a "general" application (whatever that is). All these changes are intended to hinder diligent researchers.

Article 4
Exceptions
1. The institutions shall refuse access to documents where disclosure could undermine the protection of:
a) public interest as regards:
- public security;
- defence and military matters;
- international relations;
- relations between the Member States and the institutions of the Community, or between the institutions of the Community and non-Community institutions;
- the financial, monetary or economic policy of the Community or of the Member States;
- court proceedings;
- inspections, investigations and audits.
b) privacy and the integrity of the individual as protected in particular by Community legislation regarding the     protection of personal data.
c) economic interests of a natural or legal person concerning in particular:
- business and commercial secrets;
- intellectual and industrial property;
- information on costs and tenders in connection with award procedures before these procedures are completed.
2. Access to a document may be denied if its disclosure could seriously undermine the effectiveness of the institution's decision-making process, unless it is clearly in the public interest to disclose the document.
3. The institutions shall not release a document if the Member State or the other third party from which the document originates has requested the institution concerned not to disclose it without its prior agreement.

Comment
4.1.a: Major changes. The member states arguing for the much stronger test of "could significantly undermine the protection of.." appear to have lost. Major new categories of exceptions added: "defence and military matters" and "relations between the Member States and the institutions of the Community, or between the institutions of the Community and non-Community institutions".
4.1.b: Reformulation of current code.
4.1.c: Reformulation of current code.
4.2: Broader category than at present, now includes a stronger test by the inclusion of the words "unless it is clearly in the public interest..."
4.3: Entirely new and negative formulation. This provision provides an absolute "veto" to EU member states, international bodies or agencies (eg: NATO) or non-EU governments - there is no test under the exceptions.Currently Article 4.1 only allows confidentiality as required by "the legislation of the Member State".

Article 5
Processing of initial applications
1. Applications for access to documents shall be handled promptly. In any case, within one month from registration of the application, the institution shall either grant the applicant access to all the documents applied for or, in a written reply, inform the applicant of the reasons for the total or partial refusal and of his right to make a confirmatory application in accordance with paragraph 2.

Initial applications for special documents shall be handled only by those persons who have a right to acquaint themselves with these documents.

2. In the event of a total or partial refusal, the applicant may, within one month from receiving institution's reply, make a confirmatory application asking the institution to reconsider its position.
3. In exceptional cases, e.g. in the event of an application relating to very large documents or to a very large number of documents, the one-month time-limit provided for in paragraph 2 may extended by one month, provided the applicant is notified in advance and that detailed reasons are given.
4. Failure to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.

Comment
5.1: Entirely new and negative 2nd para: "Solana Decision" provision. Only officials sitting on the Working Parties, who would anyway have been vetted, will be able to decide if a "special document" is to be released.
5.2: No change.
5.3: Changed to giving examples, eg: very large number of documents.
5.4: No change.

Article 6
Processing of confirmatory applications

1. A confirmatory application shall be handled promptly. In any case, within one month from registration of such application, the institution shall either grant access to the documents requested or, in a written reply, state the reasons for total or partial refusal. Should the institution deny access in total or in part it shall inform the applicant of the remedies open to him, namely instituting court proceedings against the institution and/or making a complaint to Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively, and in the relevant provisions of the Treaty on European Union.

Confirmatory applications for special documents shall be handled only by those persons who [have a] right to acquaint themselves with these documents.

2. In exceptional cases, e.g. in the event of the application relating to a very large document or to a large number of documents, the time-limit provided for in paragraph 1 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.
3. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to refer the matter to the Ombudsman and/or to the Court of Justice, under the relevant provisions of the Treaties.

Comment
6.1: The 1st paragraph is the same as under the 1993 Decision. The 2nd paragraph is entirely new introducing the concept of "special documents" ("Solana Decision") to cover foreign policy, military and non-military crisis management documents. The quaint term "persons who have a right to acquaint themselves with these documents" refers to officials sitting on Council working parties and in the General Secretariat of the Council.
6.2: This is not new but what is new is the attention drawn to "a very large document or to a large number of documents".
6.3: No change

Article 7
Exercise of the right to access

1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, according to his preference.

The cost of his doing so may be charged to the applicant.

2. If a document is already published and is easily accessible to the applicant, especially via the Internet, the institution may inform him how to obtain it.
3. Documents shall be supplied in the language version requested by the applicant, or in the language of the application, provided that language version is available.
4. Documents shall be supplied in the form requested by the applicant if they are already available in that form, e.g. electronically or in an alternative format, such as Braille. large print or tape.
5. If only parts of the requested document are covered by any of the exceptions in Article 4, the remaining parts of the document shall be released.

Comment
7.1: No change.
7.2: This is new. Documents are available now on the internet but the documents held often do not include details of the document number (eg: 12354/1/00) or acronym (eg: ASIM) or the originator or by which working party/committee it has been considered - in short, the document is not complete. Moreover, it leaves to the discretion of officials in the institutions to decide if the applicant has access to the internet.
7.3: This is a new and positive change.
7.4: This is a new and positive change.
7.5: This is new and is a change brought about by the case of Heidi Hautala MEP before the Court of Justice. Providing it is not abused this is a positive change - for example, access to the substance of a document may be refused because it contains the names and addresses of officials, once deleted there is no reason why a document should not be supplied.

Article 8
Reproduction for commercial purposes or other forms of economic exploitation

An applicant who has obtained a document may not reproduce it for commercial purposes or exploit it for any other economic purpose without the prior authorisation of the rightholder.

Comment
8: Major change. The current code simply limits reproduction "for commercial purposes". The addition of "for any other economic purpose" would stop the reproduction of documents which constitute public policy and is unacceptable in a democracy. Also the introduction of the concept of "rightholder" (instead of the current term "the institution") strongly implies that governments (and non-EU states and agencies) consider themselves to be the "author" of documents with the right to decide who should be able to distribute them - taken to extreme a public servant (official) could claim copyright over a document they have written!

Article 9
Information and registers

1. Each institution shall take the requisite measures to inform the public of the rights they enjoy arising from this Regulation. Furthermore, to make it easier for citizens to exercise their rights arising from this Regulation,each institution shall provide access to a register of documents.
2. No reference shall be made in the public register to the subject-matter of a document if disclosure of that information could undermine the protection of the interests referred to in Article 4(1).

Comment
9.1: This is a new and welcome change.
9.2: This is a new and unwelcome change. This means that not only classified documents will be excluded from the public register (and those "contaminated" by classified documents) but any other document (including non-classified documents) can be excluded from public knowledge under the expanded exceptions under under Article 4.1.

Article 10
Effect

Each institution shall adopt in its Rules of Procedure the provisions required to give effect to this Regulation. Those provisions shall take effect on... [three months after the adoption of this Regulation].

Article 11
Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities. It shall be applicable from... [three months from the adoption of this Regulation].

This Regulation shall be binding in its entirely and directly applicable in all Member States.

Comment
This is new. It makes the "Regulation" binding on Member States and potentially undermines national laws on freedom of information..



Full-text

NON-PAPER, 17.11.00

ARTICLE 255

Article 1
General principles and beneficiaries

1. Any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles, limits and conditions defined in the Regulation.

2. The institutions may under the same conditions grant access to documents to any natural or legal person not residing or not having its registered office in a Member State,

3. The institutions shall according to their own Rules of Procedure determine which categories of documents will be directly accessible to the public, especially those relating to their legislative activities.

4. This Regulation does not deprive citizens of the Union of rights concerning access documents acquired under instruments of international law.

Article 2
Scope

1. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up by it or received from third parties and in its possession, in all areas of activity of the Union.

2. Documents which are special on account of the sensitivity of their content will receive a special procedural treatment.

Article 3
Definitions

For the purpose of this Regulation

(a) "document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); only documents concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, excluding texts for internal use such as discussion documents, opinions of departments, unfinished documents or documents in preparation and contents which express personal opinions reflecting views as part or preliminary consultations and deliberations within the institutions, shall be covered;

(b) "special documents" shall mean documents in the field of security and defence classified as "Top Secret", "Secret" or "Confidential" because of the sensitivity of their content;

(c) "third party" shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and non-member countries.

Article 3 A
Applications

1. Applications for access to a document shall be made in writing in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document.

2. If an application is not sufficiently precise the institution shall ask the applicant to specify the application and assist the applicant in doing so, e.g. by providing the applicant with information on the use of the public registers of documents.

3. In the event of general and repetitive applications or applications relating to very large documents or a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.

Article 4
Exceptions

1. The institutions shall refuse access to documents where disclosure could undermine the protection of:

a) public interest as regards:

- public security;
- defence and military matters;
- international relations;
- relations between the Member States and the institutions of the Community, or between the institutions of            the Community and non-Community institutions;
- the financial, monetary or economic policy of the Community or of the Member States;
- court proceedings;
- inspections, investigations and audits.

b) privacy and the integrity of the individual as protected in particular by Community legislation regarding the            protection of personal data.

c) economic interests of a natural or legal person concerning in particular:

- business and commercial secrets;
- intellectual and industrial property;
- information on costs and tenders in connection with award procedures before these procedures are            completed.

2. Access to a document may be denied if its disclosure could seriously undermine the effectiveness of the institution's decision-making process, unless it is clearly in the public interest to disclose the document.

3. The institutions shall not release a document if the Member State or the other third party from which the document originates has requested the institution concerned not to disclose it without its prior agreement.

Article 5
Processing of initial applications

1. Applications for access to documents shall be handled promptly. In any case, within one month from registration of the application, the institution shall either grant the applicant access to all the documents applied for or, in a written reply, inform the applicant of the reasons for the total or partial refusal and of his right to make a confirmatory application in accordance with paragraph 2.

Initial applications for special documents shall be handled only by those persons who have a right to acquaint themselves with these documents.

2. In the event of a total or partial refusal, the applicant may, within one month from receiving institution's reply, make a confirmatory application asking the institution to reconsider its position.

3. In exceptional cases, e.g. in the event of an application relating to very large documents or to a very large number of documents, the one-month time-limit provided for in paragraph 2 may extended by one month, provided the applicant is notified in advance and that detailed reasons are given.

4. Failure to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.

Article 6
Processing of confirmatory applications

1. A confirmatory application shall be handled promptly. In any case, within one month from registration of such application, the institution shall either grant access to the documents requested or, in a written reply, state the reasons for total or partial refusal. Should the institution deny access in total or in part it shall inform the applicant of the remedies open to him, namely instituting court proceedings against the institution and/or making a complaint to Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively, and in the relevant provisions of the Treaty on European Union.

Confirmatory applications for special documents shall be handled only by those persons who right to acquaint themselves with these documents.

2. In exceptional cases, e.g. in the event of the application relating to a very large document or to a large number of documents, the time-limit provided for in paragraph 1 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to refer the matter to the Ombudsman and/or to the Court of Justice, under the relevant provisions of the Treaties.

Article 7
Exercise of the right to access

1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, according to his preference.

The cost of his doing so may be charged to the applicant.

2. If a document is already published and is easily accessible to the applicant, especially via the Internet, the institution may inform him how to obtain it.

3. Documents shall be supplied in the language version requested by the applicant, or in the language of the application, provided that language version is available.

4. Documents shall be supplied in the form requested by the applicant if they are already available in that form, e.g. electronically or in an alternative format, such as Braille. large print or tape.

5. If only parts of the requested document are covered by any of the exceptions in Article 4, the remaining parts of the document shall be released.

Article 8
Reproduction for commercial purposes or other forms of economic exploitation

An applicant who has obtained a document may not reproduce it for commercial purposes or exploit it for any other economic purpose without the prior authorisation of the rightholder.

Article 9
Information and registers

1. Each institution shall take the requisite measures to inform the public of the rights they enjoy arising from this Regulation. Furthermore, to make it easier for citizens to exercise their rights arising from this Regulation,each institution shall provide access to a register of documents.

2. No reference shall be made in the public register to the subject-matter of a document if disclosure of that information could undermine the protection of the interests referred to in Article 4(1).

Article 10
Effect

Each institution shall adopt in its Rules of Procedure the provisions required to give effect to this Regulation. Those provisions shall take effect on... [three months after the adoption of this Regulation].

Article 11
Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities. It shall be applicable from... [three months from the adoption of this Regulation].

This Regulation shall be binding in its entirely and directly applicable in all Member States.

For the European Parliament
The President

For the Council
The President



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