07 February 2000
Listening to the speeches of Europe's political leaders in recent months it is difficult to suppress the sentiment that they are not being quite serious. Many "grand" visions of the future of Europe have been launched (Joshua Fischer, German Foreign Minister, Jacques Chirac, French President, Guy Verhofstadt, the Prime Minister of Belgium and Tony Blair, the British Prime Minister). The rather pedestrian preoccupation of the current IGC process to ensure that the European institutions operate in an efficient manner after the next rounds of enlargement ( a new Europe of 25 to 30 members) is for many European political leaders too meagre a diet. A European Union with very imperfect democratic legitimacy and ill functioning cannot be the end station of what they have in mind, no matter how many new members it acquires. The politicians horizons have these past months shifted not so subtly away from the size of the EU to the ultimate goal of the European unification process.
How must a European Union with so many members be conceptualised, in which areas must a common European policy be pursued together and what should the renewed EU's role in the world be? Progress in each of these regards is said to be possible only if the ultimate goal to be achieved is formulated first. According to the Belgian prime minister: "any process comes to a standstill when we lose sight of the objective. That is how it works. It is the dynamics caused by the debate about the ultimate goal that is the strength of the European integration. If these dynamics are no longer there, the European unification is threatened by stagnation. Actually, the European Union may be compared to a bicycle. It must move forward, otherwise it falls."
But the fundamental question is surely in what kind of Europe do we want to live? The Belgium Prime Minister claims that "we all would like to live in a Europe that is built on European values of democracy, respect for human rights, rule of law and the cultural and political diversity which is our richness. In short, a Europe that attaches great importance to the values, which result from the French revolution. A Europe that knows how to ensure these values without giving up its diversity and its future." Few will disagree with this, Euro sceptics included. The problem is that it sounds marvellous phrased in these terms but the operationalisation in practice is severely lacking.
A Europe that attaches great importance to the value of democracy is not what we are currently living in. Transparency in decision-making and freedom of information are key elements in the democratisation process of the EU. Without an informed citizenry no real accountability is possible. Yet what is presently happening is that the Member States acting together in Council as well as the Commission (and even in certain respects the European Parliament) seem almost to be conspiring together to ensure that the gradual and hotly contested steps towards achieving more openness in decision-making processes at the EU level are stopped in their tracks and in some respects reversed.
Over the course of the past five or so years, many EU institutions and organs have themselves adopted on a voluntary basis self-regulatory measures granting citizens access to their documents. Moreover the Court of Justice in Luxembourg has laid down some general principles in case law. However it was the Treaty of Amsterdam which explicitly gave the citizens' right to access to documents a fundamental treaty status. It also required that secondary legislation (Euro-Freedom of Information Act, FOIA) had to be adopted by May 2001.
The current EU rules give access to all categories of documents produced by the institutions in question, subject to a limited number of exemptions. The Commission drew up a draft Euro-FOIA earlier this year which excluded a very substantial category of documents from its scope on the ground that the institutions need a (unlimited) space to think. Excluded are "texts for internal use such as discussion documents, opinions of departments and informal messages". Such excessive defensiveness has been the subject of quite extensive criticism. Also it is quite extraordinary that the Commission in its new draft directive on public access to environmental information includes such internal documents within the scope of access of the directive only enabling Member States to refuse access where they can show that a specific exemption applies, subject to an overall public interest test. This much more restrictive and narrowly tailored approach to Member States environmental information stands in sharp contrast to the Commissions approach to its own internal documents.
The Solana Decision
The Commission's draft Euro-FOIA is now being considered both by the European Parliament and the Council . In the meantime, the Council this summer explicitly challenged the Parliament's role in the EU legislative process by unilaterally amending its own decision on access to its documents. This can be described as an act of bad faith by the Council given that the Euro-FOIA will replace this internal decision as soon as it is adopted. Moreover, it can be argued that the provisions of the Treaty of Amsterdam create a standstill obligation for the Community institutions as regards access to documents. In other words the institutions must not act in a manner which makes access to documents more difficult than before the entry into force of the Treaty of Amsterdam. Instead what is now happening is that both the Commission and the Council are attacking what has already been achieved.
The Council decision in question was adopted on 14 August while the European Parliament, its legislative partner, was in recess. National parliaments and civil society were also not informed. Some of the press dubbed this incident "Solana's military coup". Mr. Solana, ex-Secretary General of NATO, is Secretary-General of the European Union and High Representative for Common Foreign and Security Policy. As well as that he is Secretary-General of the Western European Union (WEU). The amendment he prepared severely restricted public access to "all documents classified as top secret, secret and confidential in the fields of foreign policy, military and non-military crisis management". It did so by excluding such documents from the scope of access entirely.
Sensitive security information is protected by every administration. There is nothing extraordinary or undesirable about that. That aim could have been achieved by the exemptions included in the existing rules on access. What is undesirable and is explicitly contrary to the existing case law of the Court of Justice is to exempt broad categories of documents without subjecting individual documents to explicit scrutiny as to the applicability or otherwise of one of the grounds of exception (protecting justified interests such as privacy, defence, etc). Moreover the case law requires institutions to grant partial access to documents where non confidential information is included and to respect general principles such as the principle of proportionality. This was ignored.
There are a few other aspects to the Solana decision which are worrisome. First, the phrase "non-military crisis management" refers to civilian aspects of crisis management, such as police and judicial co-operation. This would exclude, for example, access to all documents relating to the new EU rapid-reaction paramilitary police force, even with regard to policy-making matters. Second, the Solana decision allows international organisations such as NATO and third countries such as the US to veto a citizens access to documents if the documents have been drawn up by or in conjunction with them. For all the rhetoric of the EU on the need for greater transparency only the Netherlands, Sweden, and Finland voted against adoption of the Council's Solana decision.
The Dutch decision to challenge the legality of the Council's Solana decision before the Court of Justice in Luxembourg has been greeted with surprise by some of the other Member States. But the Netherlands has also strong allies on the matter. Sweden and Finland have announced that they will support the Netherlands in its case and the European Parliament has too. Though this firm stance in favour of more openness is very welcome it must be recalled that it will raise the rather technical legal question of the validity of the legal basis employed in the light of the changed legal context of the Treaty of Amsterdam. Moreover by the time the Court delivers its judgment the outcome will be of largely historic interest.
The future of EU open government
The more immediate issue for the future of open government in the EU is the question of the relationship of the Solana decision to the draft Euro-FOIA now going through co-decision. The Commission has issued a statement, promising to adjust its own rules to bring them into line with the Solana decision. This is explained by the fact that the Commission is itself negotiating security arrangements with NATO at present. Moreover the Commission has stated that it might also have to amend the draft Euro-FOIA to incorporate the Solana provisions. If the Commission does this then the Netherlands may again be overruled in the co-decision procedure which is governed by majority voting. The UK government has informed the House of Lords that it is likely that the Solana decision "will form the basis for the Council's common position on the Regulation".
The battle lines are in any event clearly drawn and the outcome uncertain. At the end of the day it might only be an outright veto by the European Parliament which could stop an unsatisfactory Euro-FOIA being adopted. In these circumstances all three institutions in the legislative procedure would fail to comply with their treaty obligation to adopt a Euro-FOIA by May 2001. It is in this troubled perspective that Europe's leaders need to ensure that their grandiose plans on Europe's future turn out not to have feet of clay. Their own credibility vis a vis the citizens of the EU are at stake. They need to first take the issue of more transparency and openness seriously. This means ensuring that the European Freedom of Information Act which is in the process of being finalised does not constitute a step backwards compared to the status quo. In other words it should build on what has already been achieved both at the EU level itself as well as at the national constitutional level. The aim of formulating such rules at the EU level can never be to deprive Europe's citizens of rights which they have already acquired either at the European level or at the national level.
The forces for secrecy cannot be allowed to argue that the EU institutions need a virtually unlimited space to think : these institutions do not operate as islands where fortifications need to be firmly secured around them. Rather these institutions and organs operate within a democratic culture and are subject to its restraints. Moreover at the very time when the EU is planning to adopt an EU Charter of Fundamental Rights enshrining both the right to information, to access to documents and to good administration it must be ensured by all the various actors that the fundamental status of such rights is taken seriously in practice, in deeds as well as words. Only when this is assured should the debate on Europe's future and the means of increasing its democratic legitimacy pursue its course.
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