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Perhaps the most extraordinary episode occurred on 26 July 2000. This is traditionally the time when most MEPs are off for their summer holidays, the Council and Commission all but shut down for the month of August and the Brussels media too had mostly departed. Statewatch was alerted by its contacts to a row in the Council's Working Party on Information (comprised of the press officers from each of the national delegation based in Brussels) on access to documents and set about gathering the background documents (a few were public, most were leaked) and first ran the story on Statewatch News online on 26 July 2000.
In an unannounced move to meet NATO demands far-reaching changes to the 1993 Decision on the public right of access to EU documents were rushed through the Permanent Representatives (of the EU member states based in Brussels' delegations) meeting (COREPER) on 26 July. The changes were formally adopted by the EU on 14 August through what is known as "written procedure" (the measure is simply faxed out and is passed if a majority of Member States are in favour).
National parliaments and the European Parliament were not consulted. The International Federation of Journalists called the move a "Summertime Coup". When Statewatch requested a copy of the options on the table access was refused because it could embarrass "the Council's partners" and:
"could fuel public discussion on the subject"
The person engineering these changes was Mr Solana, the Secretary-General of the Council of the European Union/High Representative on Common Foreign and Security Policy who was Secretary-General of NATO until September 1999 when he took over the top job at the Council - the body working on behalf of the 15 EU governments.
The "Solana Decision" brought about was an agreement with NATO to agree "security arrangements" by the end of July. Mr Solana undertook three separate, but linked, initiatives.
The first was set out in a secret "Note for the Committee of Permanent Representatives regarding the Security Plan for the Council". (2) Apart from dealing with physical security issues the core of the plan was to change the "Legal and Regulatory Framework" to protect information concerning the EU's European Security and Defence Policy (ESDP) where:
"existing legislation must be amended and new texts must be adopted"
The first proposed amendment was to the Security Classifications adopted by the Council in 1995 and 1997. The second "proposed amendment" read as follows:
"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."
The import of this "amendment" was breathtaking. In the public arena the Commission, Council and European Parliament were engaged on a process of adopting a new Regulation on the citizens' right of access to documents to met a commitment in the Amsterdam Treaty. In the secret confines of the Council here was the top official, working to meet NATO requirements, to permanently exclude whole categories of documents from public access.
This was not just a statement of intent, Mr Solana put it into practice. On 26 July COREPER agreed to i) re-write the 1993 Decision on access to EU documents; ii) to introduce a new security classification system and iii) set out rules on who could, and who could not, handle categories of documents. In combination this allowed Mr Solana to exchanges letters with Lord George Robertson, Secretary-General of NATO, setting in place interim "security arrangements" by lunchtime on 26 July 2000.
How was this "coup" achieved?
A "Working Document" setting out the "proposed modifications" to the 1993 Decision on access, dated 12 July, was sent to the Brussels delegations of the EU governments - this was just prior to a scheduled meeting of the Working Party on Information (WPI). Since 1994 the WPI, representing member state governments, has considered all confirmatory applications (appeals against refusal of access), reports from the Secretary-General on the working of the code of access and proposed changes to the 1993 Decision.
On this occasion the proposal was prepared by the Legal Service of the Council. EU officials thus presented the governments with a virtual fait accompli. When the "Working Document" was discussed at the WPI meeting on Friday, 14 July two delegations walked out (Sweden and Finland) and the Netherlands said they had been subjected to a "military coup".
On Monday, 17 July, the Antici Group (high-level representatives of EU permanent delegations) agreed the final proposal and further that it should be submitted to the meeting of COREPER on Wednesday 26 July.
At the COREPER meeting four options were presented: a) all documents with Top Secret and Secret classifications on foreign policy, military and non-military crises management be excluded as a category from the existing code of access; b) all documents classified as Top Secret and Secret in all areas of EU activity be permanently excluded from public access; c) as a. but extended to include Confidential documents as well; d) no category of document to be permanently excluded, only specific documents on specific grounds (the existing practice supported by Netherlands, Sweden and Finland).
Ten governments supported option c). above (the Solana proposal), Germany, Austria, Italy, Greece, Belgium, Ireland, Luxembourg, Spain, Denmark and the UK. The Netherlands, Finland and Sweden came out against the proposal. Portugal abstained because it wanted an even stronger measure and France abstained because it was the Presidency (only the Netherlands broke ranks with the other EU-NATO states).
The COREPER meeting also agreed that the new code should be adopted, on Monday 14 August, by "written procedure" rather than waiting for the next meeting of the General Affairs Council of Ministers (which would usually adopt such a measure) scheduled for 18 September.
Mr Solana waited on no such constitutional niceties as the formal adoption. A letter from Lord George Robertson, Secretary-General of NATO to Solana of 26 July set out the terms of an "interim security agreement". Mr Solana replied on the same day, 26 July, that the terms in their entirety were accepted and in force as of this day. However, there appears to be some discrepancy because the Robertson's letter to Solana is date-stamped 27 July by the Council's Secretariat, so how did Mr Solana reply to and agree terms contained in a letter he had not received? (3)
The changes to the 1993 Decision on documents would have permanently excluded from public access all documents which are classified Top Secret, Secret and Confidential concerning the "security and defence of the Union or one or more of its Member States or on military or non-military crisis management". It also sought to exclude access to any category of linked documents which "enables conclusions to be drawn" regarding the existence of another, classified document without the express permission in writing of "the author" (eg: NATO or the US). The new Decision lumped foreign and military policies together with "non-military crisis management", which includes a proposal to set up a 5,000-strong EU paramilitary police force and would impinge on nearly every issue covered by justice and home affairs (including border controls), aid and trade issues.
What is extraordinary about these decisions is that the prime mover was Mr Solana, an appointed of official, and not the EU governments who had put the 1993 Decision in place and set up a public register of documents. Moreover, a Council Decision, on the initiative of the Finnish Presidency, of 19 December 1999 a which said that classified documents (subject to specific exceptions) should be listed on the public register of documents was simply circumvented by Mr Solana and his officials.
The European Commission immediately put out a statement saying that it too would fall into line and amend its proposal to meet the Solana changes.
Footnotes
Overturning the: Decision of the Council on 19 December concerning classified documents
Statements by: Denmark, the Netherlands, Sweden and Finland and the European Commission
Full-text of: Working document, dated 12.7.00 Analysis of: Working document, dated 12.7.00
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, 25.7.00;
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, 8.8.00;
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