18 July 2000
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- Mr Jacob Soderman, the European Ombudsman, said in an interview that there was no need to change the code of access to protect military secrets, that the new code should not put "non-military" issues in the same bracket (Aamulehti, 12.8.00)
- new Code to replace 1993 Decision on public access to documents to protect military and non-military documents but affecting all access to documents linked to these issues agreed by EU governments
- no classified documents to be released, ever; no distinction made been policymaking (which should be public) and operational details; similar rules to cover police and judicial cooperation are being drawn up
- the proposal completely undermines the EU commitment in the Amsterdam Treaty (Article 255) to enshrines the public's right of access to documents
- European Commission to change its proposed new measure to meet the Solana changes
- national and European parliaments not consulted; Code adopted by "written procedure" on 14 August
At the meeting of COREPER (committee of Brussels-based permanent representatives of the 15 member states) on Wednesday 26 July a proposal by Mr Solana, the Secretary-General of the Council of the European Union was adopted with only three countries voting against (Netherlands, Finland and Sweden). The new rules on public access to documents - replacing the 1993 Decision - were adopted by "written procedure" on 14 August ( the decision was simply circulated to the Member States and adopted). The new Decision came into effect with its publication in the Official Journal on 23 August.
The 12 member states supporting the proposal favour were: the UK, Germany, Denmark, Austria, Italy, Greece, Belgium, Ireland, Luxembourg, France, Portugal and Spain. Portugal was in favour of an even more secretive measure. Only the Netherlands and Denmark broke ranks with the other EU NATO members. Denmark, the Netherlands, Sweden and Finland issued a statement opposing the new Decision, the European Commission issued a statement saying that it would reconsider its proposal currently before the European Parliament: Full-text of Statements
It is was further agreed that the new rules have to be incorporated into the draft measure put forward by the Commission in January and now being discussed by the European Parliament.
The new rules would totally undermine the commitment in the Amsterdam Treaty (Article 255 of the Treaty on the European Communities) to enshrine the public's right of access to EU documents - Article 28 of the Treaty on European Union says that Article 255 on public access to documents also apply to the common security and foreign policy.
In another report entitled: "Plan for the security of the Council", also from Mr Solana, it says that similar specific rules to completely restrict access to document on police and judicial cooperation are being considered.
Tony Bunyan, Statewatch editor, commented:
"This heralds the imposition of the security state in the EU with all the paranoia that goes with it. The future of democratic accountability in the EU now has to be confronted."
The new rules completely re-shape the current code of public access to documents by making it a code to protect EU documents on security, defence, military and non-military crises management (full-text below). A further report redefines the Council's classification code adopted in 1995. The proposal was put forward by Mr Solana, the EU High Representative for common foreign and security policy and Secretary-General of the Council of the European Union.
When the proposal was suddenly introduced at the Council's Working Party on Information (comprised of the press officers from the EU's member states permanent offices in Brussels) it is reported that the Swedish and Finnish representatives stormed out of the meeting and a spokesperson for the Netherlands said it was: "a coup by the military".
The decision prepared in secret and dumped on the Working Party on Information just three weeks before the COREPER meeting. It was rushed through when the institutions in Brussels are half-empty, the European Parliament is already off on its annual holidays as is most of the press corp.
The last time as controversial a measure was rushed through COREPER and adopted by written procedure was the, much criticised, "Requirements" adopted on 17 January 1995 when the EU agreed to adopt the FBI guidelines for the rules to be placed on network and service providers for the interception of telecommunications, see EU-FBI
The meeting of COREPER had four options before it:
The majority, 11 member states, voted for option 3 (which goes beyond the "Working document" by including "confidential" as well as "top secret" and "secret" documents). The German representative wanted to extend the same provision to justice and home affairs but found little backing at this stage.
The revised code of access to documents will not just affect foreign policy and military and non-military crises management but access to documents in all fields where there is a reference to a classified document.
The euphemism "non-military crises management" will impinge in a major way on the civil as distinct from military practices of the EU. For example, the planned creation of an EU mobile, para-military, police force some 5,000 strong with 1,000 always on standby. After the first meeting of the newly-created "Committee for Civilian Aspects of Crisis Management" on 16 June Mr Solana issued a press statement saying that:
"Civilian and military aspects of crisis management need to go hand-in-hand, and the EU has a special role to play in this area. I am particularly interested in the work on concrete targets on police, where the Union can make a difference."
The Council's decision will come as a bombshell to the European Parliament which has just started discussing the Commission's much criticised proposal for a new code of public access to documents to meet the commitment in the Amsterdam Treaty to enshrines citizens' rights - nor will the Commission be very pleased. The commitment to a new code was agreed in Amsterdam in June 1997 and the Commission published its draft measure in January this year. Four Committees in the European Parliament have started the process of considering the Commission's proposal in the light of the existing practice under the 1993 Decision and have a timetable, including two public hearings in the autumn, in order to reach a view before Christmas. The Council and the Commission then have to react to the European Parliament's position with the need to finalise the measure by May 2001 - it has to be agreed by all three institutions, the Council, the European Commission and the European Parliament under the co-decision procedure.
This move by Mr Solana to try and redefine the basis of the debate has been called by an academic commentator as a: "major act of bad faith".
Heidi Hautala MEP, leader of Green Group of MEPs, said the Solana proposal was: "NATO introducing its culture of secrecy by the backdoor."
Mr Soderman, the European Ombudsman, said in a newspaper interview (12.8.00) that the existing rules could protect military information and that the problem was the civilian aspects of crisis management like police and judicial cooperation.
A spokesman for Mr Solana wrote a letter to the Finnish newspaper Turun Sanomat (15.8.00) in response to an article by Heidi Hautala MEP on NATO setting the limits of EU openness. The Solana spokesman said that: "openness is an important value, but we must be able to secure international peace, security, democracy and human rights". The newspaper wondered if this meant Mr Solana thinks openness is an obstacles to these objectives?
Why Solana acted now
Mr Solana has been widely reported as complaining about the lack of physical security in the Council of the European Union's Brussels HQ at Justus Lipsius, and commenting the lack of security on documents (he was Secretary-General of NATO, 1995-2000). Two factors prompted this move.
First, under the decision taken by the Council under the Finnish Presidency in December 1999 the Council's public register documents was meant to include bibliographic reference to classified documents as from 1 January 2000. But nothing happened. A Council official told the European Parliament's Committee on Freedoms' and Rights on 12 July that this was due to "technical reasons". The real reason is now apparent.
The second factor was that Jelle van Buuren, of Eurowatch, Netherlands, starting appealing against the refusal of the Council to provide access to documents concerning military matters - two of his confirmatory applications (appeals) were rejected by the General Affairs Council on 11 July.
Mr Javier Solana was appointed Secretary-General of Council of the European Union and High Representative for Common Foreign and Security Policy for a period of five years on 13 September 1999. On 25 November 1999 he was also appointed to be Secretary-General of the Western European Union (WEU). Prior to his appointment as Secretary-General of the Council he was Secretary-General of NATO (December 1995-September 1999), before this he was Minister for Foreign Affairs in Spain (July 1992-December 1995).
Since taking office in September last year Mr Solana has set up within the structure of the Council of the European Union: the Interim Political and Security Committee, the Interim Military Body and the Committee for Civilian Aspects of Crisis Management.
Full background to the issue of access to documents and EU secrecy see: Secret Europe and Statewatch's Observatory on access to EU documents
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