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Germany and France lead fight for more secrecy by EU governments and UK sits on the fence - Council position on access to documents even worse than the Commission's

01 November 2000

The draft position of the Council of the European Union on the new code of public access to EU documents is even worse than the unsatisfactory Commission proposal.

The views of the member states on the Council vary widely with some trying to change the draft position to allow even less access than at present.

Statewatch has carried out an Audit of the amendments put forward by EU member states to the Council's draft position. It shows that Germany and France are calling for even more secrecy and less access to documents than in the already deficient Council position. Denmark, Netherlands, Finland and Sweden lead the way in arguing for more openness. The UK's position is to say the least equivocal and certainly does not match its previous support for freedom of information in the EU.

Overall the Audit and Analysis shows that the majority of EU governments are: i) not backing openness, ii) not acting to "enshrine" the citizens' right of access to EU documents by faithfully putting into effect the commitment in Article 255 of the Amsterdam Treaty and iii) are even using the new code to remove existing rights under the 1993 Decision.

Statewatch audit of proposed amendments
Amendments for: Eight key criteria*
Member state More access/Less More access/Less
1. Denmark 15 1 6 2
2. Netherlands 13 - 6 2
3. Finland 10 1 6 2
4. Sweden 10 - 7 1
5. Italy 5 3 1 7
6. Belgium 5 3 - 8
7. Spain 3 3 - 8
8. Greece 1 1 - 8
9. UK 5 6 2 6
10. Ireland - - - 8
11. Portugal - 2 - 8
12.Luxembourg 1 3 - 8
13. Austria 1 4 - 8
14. France 3 9 1 7
15. Germany 1 12 1 7


* The "eight key criteria test" is based on maintaining the rights under the present code of access and/or giving new positive rights:

1) whether the measure should be a "Regulation" which could override national freedom of information laws (Council same as Commission);

2) Article 1: giving right access to non-EU people (Council same as Commission);

3) Article 3: opposing "space to think" (Council same as Commission, different wording);

4) Article 5: opposing "repetitive applications" (Council worse than Commission);

5) Article 4: "harm test standard" (Council worse than Commission)

6) Article 4: opposing giving third parties and organisations a veto over access within the EU (Council worse than Commission)

7) Article 8: supporting the freedom to reproduce documents except for commercial purposes (Council same as Commission).

8) The "Solana Decision" has not been incorporated in the Council draft position, however, the vote in COREPER, 12-3, is highly indicative. Only Netherlands, Sweden and Finland voted against this decision.

"Silence" on an issue counts as a negative position.

The new measure, to be agreed by May 2001, is meant to "enshrine" the citizen's right of access to documents under Article 255 of the Amsterdam Treaty. The current right of access to EU documents is under attack on two fronts:

1) The Commission's proposed measure undermines the fundamental principle, established since 1993, that citizen's have the right of access to any document subject only to specific exceptions. It proposes to permanently exclude whole categories of documents from public access to ensure the so-called "space to think" for officials (public servants).

2) In July without consulting anyone the Council adopted, by 12 votes to 3, the "Solana Decision" to permanently exclude from public access whole categories of documents covering foreign policy, military and "non-military crisis management" - and any other document whether classified or not which refers to these issues. The Council's draft position does not incorporate this Decision which is to be the subject of a separate report.

The Council's draft position on 18 August is exactly the same