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Analysis of the working document to change the 1993 code of access to EU documents

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14 July 2000

Working Document, dated 12 July 2000

Article 1

The statement in the current Council Decision of 1993:

"The public shall have access to Council documents under the conditions laid down in this Decision"

is replaced by:

"1. Public access to Council documents, except for documents which are classified as TOP SECRET and SECRET in accordance (with regulations on security adopted by Council decision n. ..../2000 of ....) (with decision n. 24/95 of the General Secretariat of the Council on 30 January 1995 relating to protection measures for classified information applicable to the General Secretariat of the Council, as modified by decision n. .../00 of the Secretary General of the Council on .....) relating to questions of security and defence of the Union or of one or more of its member states or for the military and non-military management of crises under the conditions provided for in the present decision."

This change would fundamentally change the purpose of the 1993 Decision.

Article 2

A new Article 2.3 says:

"3. Every Council document relating to questions of security and defence of the Union or of one or more of its member States or the military and non-military management of crises and which allows to draw conclusions on the content of classified documents issued by one of the authors affected by paragraph 2 cannot be made available to the public without prior written agreement by the author of these documents and in accordance with article 8, paragraph 2, of the present decision."

This is the first example of how this proposal would "contaminate" the right of access to documents in general. Any document which refers, in any way, to a document concerning "security and defence of the Union or of one or more of its member States or the military and non-military management of crises" would automatically require the "prior written agreement" of the "author" (eg: NATO, USA etc). With many documents now linking the second and third pillars (defence and foreign policy with immigration, policing and legal cooperation) for example, the High Level Group on targeted third countries, the "contamination" will affect many justice and home affairs policies.

The concept of "written" agreement is entirely new.

Moreover, the general inclusion of "non-military management of crises" is particularly deceptive. This includes the use of EU police forces in the role of an EU para-military force, as agreed at the Summit concluding the Portuguese Presidency, some 5,000-strong (with 1,000 on stand-by), in third world and EU locations.

Article 3

Is unchanged

Article 4

Adds to the present exceptions under the Article 4.1: "the security and defence of the Union or one or more of its Member States, military and non-military crisis management".

No explanation is given for the term: "non-military crisis management" (see above)

Article 5

This Article contains a breath-taking new second sentence which says that COREPER should take the "necessary measures" to ensure that:

"to ensure that the preparation of the Council decisions on the subject may be confided to people authorised to gain knowledge of the documents in question."

This is not limited to military or so called "non-military" matters but is a general provision affecting all documents.

The "Explanatory Note" says that access to documents should not be considered by the Working Party on Information, which has carried out this role since 1993, but the officials (police, immigration, customs, internal security agencies) and military personnel who are working on the issue should decide whether to give access - who have little interest in public access especially, in a democratic system, which may lead to a questioning of their views.

Article 6

No change

Article 7

Says that "Top Secret" and "Secret" documents are permanently excluded from access. "Confidential" and Restricted" documents are simply to be refused on the grounds that the "document is classified" and the classification by the "competent authorities is always justified".

Article 8

This contains all general proviso applicable to all EU documents in every field that:

"The public cannot be given access to any classified document."

Only if a decision is taken to de-classify a document can it be given out.

Yet, the definition of a "RESTRICTED" (RESTRIENT) document is:

"information unauthorised disclosure of which would be inappropriate or premature."

which simply means it might be "embarrassing" to the policymakers. Documents labelled: "Limite" are not classified. SN documents, or meetings or Room documents are not even classified but are not on the register of documents.