Chapter 1
The introduction of the Decision on access to documents


The introduction of direct elections to the European Parliament in 1979 might have been expected to produce some effect on the secrecy of the Council's legislative and executive roles but did not. Prior to 1993 it has been observed: "The cloak of secrecy was an essential part of the Council's methodology...". (1) Explanations of what transpired at meetings of the Council of Ministers were given in "off-the record" briefings to Brussels-based journalists.

Change, when it came, did not come about because the Council (the governments of the EU) underwent a conversion to democratic standards of decision-making. Nor was it seen by the governments as an inevitable consequence of more decision-making powers, especially over policing and immigration, being taken to the EU level under the 1991 Maastricht Treaty. (2) The Treaty did contain a (non-binding) Declaration on access to documents, included at the insistence of the Netherlands government who wanted an Article to be included in the Treaty (we had to wait until the Amsterdam Treaty in 1997 for this). But change still had to be kick-started as it was by the Danish people's rejection of the Maastricht Treaty in a referendum on 2 June 1992 which apparently sent "shock waves" through the Community. The adoption by the Council of the Decision on public access to documents on 20 December 1993 certainly marked a new phase. The cosy secrecy of all the Council's proceedings, especially in justice and home affairs, came under attack. From December 1993 the Council was forced to make a series of concessions when challenged by journalists and an MEP in the Court of Instance and via the European Ombudsman. EU member states who had always favoured more openness, especially Denmark and Sweden (who joined the EU in 1995), and who were joined on different occasions by Finland, the Netherlands and the UK, were able to build on these external challenges to Council secrecy.

By 1997 the "transparency" of Council proceedings and "openness" though applications from EU citizens for Council documents was firmly on the agenda of the Intergovernmental Conference in Amsterdam.

One step forward, two back

The Maastricht Treaty had appended to it a Declaration on the right of access to information. Declaration no 17 said:

"The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submits to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions."

Despite the intent expressed in the Declaration the Commission submitted a proposal on 24 February 1992 containing draconian measures along the lines of the UK's Official Secrets Acts.(3) The Draft Council Regulation was drawn up by the Security Office of the Commission passed through its internal procedures as an uncontentious "A" point (without debate inside the Commission). However, when it reached the European Parliament there was strong criticism in the Legal Affairs Committee and critical newspaper coverage - which happened to coincide with the Danish referendum on Maastricht.

The Commission's proposal covered two sets of "security measures". The first concerned the classification of:

"all forms of information whose unauthorised disclosure could be detrimental to the essential interests of the European Communities and of the Member States".

"Information", that is documents, were to be classified where "unauthorised disclosure might be" either "extremely detrimental" (EC-TOP SECRET), "seriously detrimental" (EC-SECRET), or "detrimental" (EC-CONFIDENTIAL).

Unlike the UK Official Secrets Acts (1911, 1920, 1939 and 1989) the "information" to be classified was not limited to defence, internal security and policing. (4)

The Draft Regulation provided for sanctions against "leaking" to "limit the damage caused to a minimum and to prevent any recurrence".

The second aspect of the Draft Regulation covered the vetting of Council and Commission staff who were to have access to the classified documents. Article 12 laid down that vetting would be carried out by the internal security services of the Member State from which the official came. No right of appeal was set out.

The Draft Regulation came before the Legal Affairs Committee of the European Parliament at its meeting on 30 April 1992 where Alec Falconer MEP spotted it as it was about to go through the committee unopposed and alerted voluntary groups, the media and the European Federation of Journalists who took up the issue. In May Statewatch put out a briefing paper: "Official secrets law in the Euorpean Community?" Secrecy and openness became an issue in the Danish referendum (June 1992) and after the "negative" result the proposal was effectively "dead" - it was quietly withdrawn by the Commission after the Edinburgh Council meeting decided it was a measure best left to member states.

The two issues of "classified information" (which effects access to documents) and staff vetting were to continue. A Council Decision (not Commission) on vetting finally went through the General Affairs Committee on 27 April 1998 unreported in the media. This Decision concerned "access to classified information" with the necessary concomitant of vetting staff who will have access. (5)

What the Draft Regulation from the Commission had shown was the two opposing ideological tendencies in the Council and the Commission. As with all Draft Commission Regulations the governments of the EU member states, through their "national experts", had sight of the first draft and influenced the final one. Within the EU governments there were, and still are, those who oppose openness at every stage. Similarly there are the staff within the Council (the General Secretariat) and of the Commission (particularly the Task Force on justice and home affairs) who come from or give their support to the culture of secrecy. The battle for openness has meant engaging not just the governments of the EU but, as important, the officials who operate the policy.

In June 1993 the Commission published a basic but useful survey summarising "Public access to the institutions' documents". (6) It included an overview of public access laws in 14 EU member states - the UK at that time had no access law. (7) Then in December 1993 the Commission and the Council adopted codes of public access to documents. It might have been presumed that the battle for openness had been won - in fact, it was just beginning.

The first to be adopted was the Code of Conduct concerning public access to Council and Commission documents on 6 December 1993. (8) The second was the Council decision on public access to Council documents adopted on 20 December 1993 (reproduced in Appendix I). In effect the first governs the Commission's procedures, the second the Council's. The two are virtually identical; here the Council Decision is used.

The Council's adoption of the Decision was not unanimous. Two member states generally in support of more openness - Denmark and the Netherlands - voted against. Denmark made a public statement which said: "Denmark regrets that it has not been possible to reach agreement on better conditions for public access to Council and Commission documents." (9) The Netherlands government went further and took the first case to the Court of Justice in February 1994 questioning the legal basis of the Code (see Appendix II). It opposed the fact that it had been adopted by a simple majority of votes under the legal basis used, frustrating the Netherlands attempt to ensure greater openness.

The 1993 Council Decision on access to documents

The citizen is entitled to apply in writing for Council documents defined as "any written text, whatever its medium, containing existing data and held by the Council.." (Article 1.2). The phrase "existing data" in practice means that the Council is not obliged to construct a document that does not already exist. The overt exceptions to access are set out in Article 4.

This provides for documents to be refused, under Article 4.1, where "disclosure could undermine":

- the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),

- the protection of the individual and of privacy,

- the protection of commercial and industrial secrecy,

- the protection of the Community's financial interests,

- the protection of confidentiality as requested by the natural or legal person who supplied any of the information contained in the document or as required by the legislation of the Member State which supplied any of that information.

A report from COREPER to the General Affairs Council on 8 November 1993 said that the remaining issue was the phrasing of Article 4.1:

"Certain delegations take the view that the communication of documents covered by the exception rules should remain possible, conditional on an explicit decision of the institution concerned ("may refuse"). Others consider that once a document concerns one of these exceptions the institution should be obliged to refuse its communication ("shall refuse")." (10)

On 10 November the Belgian Presidency put forward a compromise proposal saying that access be refused where "disclosure could undermine" (this was adopted).

Article 4.2 says that "a Council document may be refused in order to protect the confidentiality of the Council's proceedings."

The covert means of refusing access have been numerous. Article 2.1 says that the request must be "sufficiently precise". Thus a general request, for example for documents concerning "migration", would be refused. To get a response it is necessary to either give the exact title or better still to give the reference number (eg: 11237/98 ASIM 22). Although the Council decision says that "Where necessary, the applicant shall be asked for further details" this is rarely if ever used. Article 2.2 says requests must be directed to "the author" of a document so documents written by an EU member state or an international body have to be directed to that body. This issue was the subject of Statewatch's 7th complaint to the European Ombudsman - the Council claiming that a requested document had three "authors", the Council Presidency, the Commission and the US authorities (see below).

Article 3.1 says applicants should either be sent copies of documents with a bill for the cost (introduced in February 1996) or by "consulting it on the spot" - this means granting access but requiring the applicant to go to Brussels to "consult it". According to the Council the only applicant against whom this sanction has been used is Statewatch (see below).

Article 3.2 says that "the General Secretariat shall endeavour to find a fair solution to deal with repeat applications and/or those which relate to very large documents." The Council interpretation of this Article has been highly restrictive. For example, many applications from Statewatch have been treated as "repeat applications" on the grounds that our requests all concern justice and home affairs - they are never for the same document. They have also chosen to hold that requests for a very large number of documents means the same thing as very large documents. The key phrase in this Article is "fair solution". In practice this means that the Council having decided that a request say for documents from four different meetings requires a "fair solution" then only provide documents from the third and fourth meetings and refuse to consider meetings one and two (this interpretation was challenged by Statewatch in its complaints to the European Ombudsman).

If the first request, answered by the General Secretariat of the Council, refuses access to documents the applicant can lodge an appeal - this is called a "confirmatory application" under Article 7. Responses to confirmatory applications are formally adopted by a Council of Ministers (which ever one happened to be meeting next). The detailed response is first considered by the Working Party on Information which is comprised of the 15 Press Officers from each of the permanent member state delegations in Brussels.

If the applicant is unhappy with the reply to a confirmatory application then they can either make a complaint to the European Ombudsman or take a case to the Court of Justice on the legality of Council's decisions.

In the background

Behind the scenes there had been much debate unseen by the public and most journalists. Public access to documents did not redress the Council Secretariat's concern with the security of documents and those who should have access to them. In November 1993 an "Internal Note" listed "370 agents" who "will need security training" including "57 agents" in the Council's own "Security service".(11) In January 1994 the General Secretariat of the Council circulated the third revision of a Draft Council Decision covering the classification of documents and the screening of personnel and a "draft Decision of the Secretary-General of the Council" to implement the former Decision. Both reflected much of the thinking in the withdrawn 1992 Commission proposal.

At the end of January 1994 the then Secretary-General, Niels Ersboll, circulated an internal note on the new code of access. (12) This set out the procedure for handling requests. On requests covered by Article 4.2, concerning the confidentiality of the Council's proceedings, it says that access could be refused where: it has a "secret" or "confidential" classification. This view might now run counter to the judgements passed down by the Court of Justice. The classification category cannot of itself be a reason for refusal of access without specific reasons related to the content of a document.

This internal note also says that access could be refused if a document revealed the positions of individual member states and this has been used extensively to deny documents to applicants. The positions taken by member states may not be in the public domain prior to or at the time of a decision but they certainly should be afterwards. Citizens have a right to know the positions taken by their governments. Moreover, the record of positions taken by member states often indicates the underlying issues at stake. For example, in February 1994 during the discussions on the fifth draft of the draft Council Decision on classified information and protection measures a number of divisions were revealed. (13)

The German delegation wanted the Council Decision to be in the form of a binding Regulation with an "unchallengeable legal basis". The French delegation wanted to give the text a "weightier" form. (14) However, the Legal Service came out against this as there were no powers in the TEC to adopt the measure as a Regulation, "A Regulation would therefore be inappropriate as a legal instrument".

In the preamble to the draft Decision a paragraph ("recital") referring to the rules of public access to documents and to the historical archives of the EU (in which all documents are meant to be deposited) drew a reservation from Germany and objections from France, Italy and Spain (who thought it should be cut out altogether). Denmark, Greece and the Netherlands "insisted this recital be included".

A major division emerged over the discretion which might be given to the Secretary-General to grant clearance to an official after screening by national internal security agencies. Five national delegations - Germany, Spain, France, Italy and Portugal - said clearance should be "in accordance with" the opinions of national security agencies. Six delegations were happy with a less strict rule - Belgium, Denmark, Greece, Ireland, Netherlands and UK - which said the Secretary-General "subject to" the screening process "may grant clearance to the official".

In the event the Decision on measures to protect classified information came into force on 1 March 1995. This Decision redefined the classifications of: SECRET, CONFIDENTIAL and RESTRICTED to SECRET, CONFIDENTIAL, RESTRICTED and LIMITÉ (Limité documents are not given a "security classification"). No mention is made of the "TOP SECRET" category which covers disclosure which could have "exceptional serious consequences".

A much revised formula on the vetting of Council staff with access to classified information went, with no advance warning, through the General Affairs Council on 27 April 1998 and was subsequently published in the Official Journal.(15)

The Secretary-General of the Council has issued two reports on the operation of the Decision on public access to documents (see below).

Footnotes

1. "The Council of the European Union", Martin Westlake, Catermill, 1995. p145.

2. The Maastricht Treaty was signed in December 1991 and came into effect on 1 November 1993.

3. Proposal for a Council Regulation (EEC) on the security measures applicable to classified information produced or transmitted in connection with European Economic Community or Euratom activities, COM(92) 56 final, 26.2.92. See, "Official secrets law in the European Community?" Statewatch Briefing paper no 1, May 1992 and Statewatch vol 2 nos 3 & 4.

4. In the EU only the UK and Ireland have Official Secrets Acts which can be used against both the giver (an official) and receiver (eg: journalist) of official information.

5. Council Decision relating to the procedures whereby officials and employees of the General Secretariat of the Council may be allowed access to classified information held by the Council. OJ, L 140, 12.5.98.

6. OJ C 156, 8.6.93.

7. The UK now has a Freedom of Information Act passed on 30 November 2000, but the government has decided that it will not come into operation until January 2005, see: Campaign for Freedom of Information

8. The 1993: Commission code  The 1993: Council code (OJ L 340, 31.12.93).

9. General Affairs Council press release, 20.12.93.

10. "Public access to documents of the Council and the Commission", from COREPER to General Affairs Council on 8 November, 9678/1/93 REV 1, RESTREINT, 4.11.93; "Non-paper from the Presidency", SN 4969/93, 10.11.93.

11. Internal note, 23.11.93 from the General Secretariat of the Council, Private office.

12. NOTE: Public access to information, from Secretariat General of the Council, Cabinet, 31.1.94 (original in French).

13. Classified information: Note from the ANTICI Group to COREPER II, SN 1261/94, 7.2.94. The ANTICI Group is comprised of representatives of the Brussels-based national delegations. COREPER is comprised of the top permanent representatives of each national delegation (national governments).

14. Classified information: draft Council Decision (SN 1261/94 of 7 February 1994), Legal Service Opinion, SN 1405/94, 7.2.94.

15. OJ, L 140, 12.5.98.


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