FECL 24 (May 1994):

THE EU'S CODE ON PUBLIC ACCESS TO INFORMATION: TRANSPARENCY THEY SAY, SECRECY THEY MEAN

Greater public access to information was set as a goal of the Maastricht Treaty (TEU) and confirmed by the European Council summit at Copenhagen in June 93. The European Union, it seemed, was moving towards a US-style Freedom of Information policy. "Transparency" became a watchword of EU progress. Less than a year later, an application of the British daily newspaper, the Guardian for papers under the code of public access has been turned down. The EU's Maastricht commitment to "open" government is exposed as a sham.

Last December, the Council adopted a proposal for an internal "code of conduct", prepared by the Coordinators' Group of senior officials now known as the K.4 Committee (under the purview of the Council of Justice and Interior Ministers). Initially, the proposal emerged from the Maastricht Declaration on "The right of access to information". Yet, while it solemnly states the "general principle" that the public will be given "the widest possible access to documents held by the Commission and the Council", the "code of conduct" is more of a European copy of the ill-famed British Official Secrets Act (see FECL No.8, p.3).

Indeed, it included a long list of reasons for refusing disclosure - including the need to protect public security, monetary stability, industrial secrecy and personal privacy. It also said that the author of any document could determine its confidentiality, thereby assuring Member States with a tradition of secretive government that their information would not leak out through the EU. Moreover, a sweeping catch-all provision was inserted upon pressure from Britain and Germany, allowing the EU to "refuse access in order to protect the institution's interest in the confidentiality of its proceedings".

Early this year, the British bulletin Statewatch published excerpts of another proposal further detailing secrecy measures in the fields of foreign, justice, internal affairs and immigration.

The proposal aims at ensuring that no documents on foreign policy, policing or immigration are released before all 12 governments are collectively committed to specific policies. The ban is likely to effectively put these policy fields outside the reach of national legislatures and the European Parliament.

In early February, shortly after the "code of conduct" entered into force, the Guardian submitted formal requests for three batches of papers covering meetings of the Council, in an attempt to establish how the confidentiality rule would be interpreted in practice.

The requested documents included summaries of ambassadorial negotiations (COREPERactivities) which preceded ministerial discussions, Council minutes and voting attendance records. Most of this information had hitherto been restricted.

The General Secretariat of the Council sent all requested documents regarding a meeting of the Social Affairs Council, but refused others covering a meeting of the Justice and Internal Affairs Council in November, "since they directly refer to the deliberations of the Council and cannot, under its rules of procedure, be disclosed".

The Guardian submitted a formal appeal against the refusal to supply the material regarding justice and internal affairs on the grounds that these documents "apparently had exactly the same status as some of those which you were able to make available".

On April 13, COREPER 1 agreed with this logic by approving a letter rejecting the appeal. Both sets of documents should have been withheld, because they referred directly to the deliberations of the Council, it said in the letter. The earlier decision to make the social affairs material available to the Guardian was described as "an administrative error" due to "the novelty of the procedure". COREPER is the Committee of permanent representatives (Senior diplomats and civil servants) of the 12 EU-Member States. COREPER is in charge of negotiations preceding ministerial discussions, the agenda of Council meetings, and the preparation of documents to be submitted to the Council for approval.

The COREPER's letter of rejection appeared as an "A-point" on the agenda of the meeting of the foreign affairs Council in Luxembourg on 19 April.

A-point proposals are usually formally nodded though by the ministers without discussion. But the Danes refused to approve the COREPER-letter. Danish ministers demanded a full debate about the EU's approach to open government before any such lapse into former habits of secrecy could be considered.

Earlier, the Dutch Minister for European Affairs had tried to protect the principle of public access without putting the Guardian's application into the limbo of a non-decision. He agreed to let the Council's letter of rejection be sent on condition that a Dutch protest was entered into the minutes.

The Danish block left EU legal experts in some confusion about the lawfulness of the Council's position, however. The Guardian's application will be deemed to have been refused because the Council has failed to reply within the month which is allowed under the code.

Theodore Pangalos, the Greek minister for European Affairs who chaired the meeting, promised he would present a written explanation shortly. "I think it is a strange outcome," he said.

"Those who spoke up for the Guardian believed in transparency, but the result means there is no transparency. I don't know if this is what you call a sophism."

The Dutch minute complained that there had been no effort to weigh the question of confidentiality against the principle of openness. "Should such a weighing of interests in fact have taken place, the applicant ought to have been informed of this in a reasoned manner," it said.

The Netherlands are also opposed to the EU code on public access to information as far too restrictive and have brought the case to the Court of Justice. In the view of Piet Dankert, the Dutch European Affairs Minister the new secrecy code is "worse than behaviour of NATO at the height of the Cold War".

Senior officials of the Council secretariat seem to be drawing their own conclusions from the incident. It is believed that they are now considering a new set of rules which would allow them to doctor documents before they are released to remove all trace of arguments between member states. "The truth is that ministers hate the idea of anything emerging", an EU diplomat said to the Guardian.

The TEU put EU justice, foreign, security and immigration outside reach of national legislatures and the European Parliament. The obvious attempts of most ministers and senior officials (i.e. the executive power) to introduce blanket secrecy on the basis of mere administrative regulations drawn up by themselves has smothered hopes of more accountability.

In private, EU diplomats have conceded that the secrecy debate might undermine the campaign in support of EU membership in Norway, Sweden and Finland. The Nordic countries have a strong tradition of freedom of information (see FECL No.15, p.6) and opponents to EU membership have long been arguing that EU membership would bring an end to open government. So far, however, the Guardian incident has not given rise to much public debate in Scandinavia for the simple reason that the story has been given little publicity there. As a matter of fact, practically all major media in the Nordic countries are in support of membership. As for the governments and public authorities, they have never been fond of what they tend to consider as their people's mania of transparency. Should the European secrecy debate itself have become a matter of secrecy?

 

Sources: Statewatch Vol.3 No.6, 1993; Vol.4 No.1, 1994 (available at: Statewatch, PO Box 1516, London N16 0EW, UK); The Guardian, 18.4.94, 19.4.94; 20.4.94; The Independent, 8.2.94; COREPER, Rapport au Conseil: Accès du public aux documents du Conseil et de la Commission, projet de Code de conduite, Bruxelles, 4.11.93, 9678/1/93, restreint.