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

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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 r

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