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Introduction

This project offers an account of the struggle for openness and freedom of information in the European Union.

The use of the terms "openness" and "transparency" is sometimes confusing. "Transparency" is used, in the EU context, to mean the "transparency" of the decision-making process - that it should be clear who makes decisions, when and where. Whereas "openness" describes the citizen's right of access to documents.

The other notion that the provision of "information" is the most important factor. It is argued that only a few hundred individuals across the EU are interested in the detail and small print of documents, whereas millions can access information on the internet. The "information" referred to is a combination of factual material (for example, the text of a Regulation or decision) and the presentation of the Commission's, or the Council's, point of view.

There is, however, an essential and indispensable link between the right of access to documents and the provision of information by the institutions, and that link is a simple one. Only if the right of freedom of information is finally established, and defended, is there any guarantee that the "information" made available will not be partial, limited, or tailored to the institutions' perspective. Much information is not on the internet but it is available through documents which tell the story of policy development and not just its end product.

Is "openness" inevitable?

There are several theories about "openness" and the Council of Ministers (EU governments). Some would argue the gradualist (and paternalistic) approach. In the early days (from the Treaty of Rome in 1976) there was a pervasive "diplomatic" approach where almost every document was a state secret. The Maastricht Treaty (1993) and now the Amsterdam Treaty (June 1997) have inevitably undermined this approach in favour of more transparent proceedings. The expansion of the EU remit to cover justice and home affairs issues (1993) and incremental increases in the powers of the European Parliament (1993 and 1997) make more "transparent" decision-making processes and ("openness") access to documents inevitable. This argument suggests that at each stage the balance between secrecy and openness was just about right.

But has change happened because of the "enlightened" views of EU governments who realise that the legitimacy of their actions depend on openness and transparency? That part of the "democratic deficit" is of their own making through seeking for too long to cling to old ways of decision-making? Certainly the Council of Ministers has been extremely reluctant to even acknowledge changes in their practice on access to documents have come about through challenges from outsiders.(1)

The reality of the struggle for openness since 1993 shows that change does not happen without a combination of factors. A handful of EU governments, acting through the Council of Ministers, have played an important role. This group has been led by Denmark and Sweden, sometimes backed by the Netherlands, Finland and the UK. The forces of secrecy have been led by France backed by Spain and Germany. On occasion nine EU member states have publicly lined up on the side of secrecy - France, Spain, Belgium, Luxembourg, Germany, Portugal, Italy, Austria and Greece - as in a notable vote attacking a Statewatch request for documents in 1996.

But without external challenges from civil society (journalists, researchers and voluntary groups), backed by liberal judges and a diligent Ombudsman, the 1993 Decision on public access to Council documents would have been ineffectual and little used. The 1993 Decision became meaningful precisely because the Council's instinct for secrecy was challenged in the court and via the European Ombudsman. These challenges, in turn, created the space for the EU member states siding with openness to back change. The new Regulation, adopted in 2001, presents new obstacles to access and all the evidence is that civil society has to continue it struggles.

Why do we need "openness"?

Open, transparent and accountable decision-making is the essence of any democratic system. Secrecy is its enemy and produces distrust, cynicism and apathy among citizens and closed minds among policy makers.

The policy areas which pose the biggest threat to civil liberties and the human rights of citizens, both for EU citizens and those who fleeing poverty and repression seek to enter as refugees and asylum seekers, have been developed in the greatest secrecy. The "Trevi" acquis was bequeathed (and incorporated into) to the Maastricht era, the justice and home affairs acquis communautaire developed between 1993-1999 has been passed on, together with the Schengen acquis (developed without little or no accountability), to the post-Amsterdam era. (2) In the field of justice and home affairs (immigration and asylum, customs cooperation, legal cooperation and police cooperation - including surveillance and public order) the Amsterdam era has inherited a European state, comprised of definable agencies and practices, which has been developed largely in secret with minimal democratic input.(3)

Now that all the essential elements are in place the European Parliament has been given some say over new measures. No procedures however are in place to scrutinise the implementation of these measures and to monitor the practices of these agencies.

The need for the full establishment of freedom of information in the EU has never been greater but it is not an end in itself, it is a means to an end. It is a prerequisite of a democratic society allowing people to inform themselves in order to effectively defend fundamental rights and liberties in the ongoing "war on freedom and democracy".

Tony Bunyan,
July 2002

Footnotes

1. See their reaction in the John Carvel case (Chapter 2) and the Statewatch cases (Chapter 3).

2. The term acquis is used in the EU to describe an agreed body of measures, decisions and practices which all EU states are expected to adhere to.

3. see, "Towards an authoritarian European state", T. Bunyan, Race and Class, vol 32 no 3, 1991. There I argued, and still argue, that we are witnessing the emergence of a European state - in particular of the coercive, "hard", state functions and practices covering internal security.