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The "Solana Decision" amending the code of public access to EU documents

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28 September 2000

Memorandum by Statewatch on the "Solana Decision" amending the code of public access to EU documents

Introduction

This explanatory memorandum (EM) and the Decision of the Council on 14 August raises three substantive issues of great concern:

A.  why was it necessary?

B.  how was it adopted?

C.  what is its effects

A.  Why was it necessary?

  The explanatory memorandum gives no explanation as to why the Decision of 14 August (popularly known as the "Solana Decision") was necessary. The 1993 Decision on access to documents in Article 4.1 allows the Council to refuse access where:

"disclosure could undermine:—the protection of the public interest: (public security, international relations . . ."

  Many commentators, including the European Ombudsman, are of the view that the existing code of access was quite sufficient for the Council's purposes. This being especially so as the Council, Commission and European Parliament are currently discussing a new Treaty obligation on public access to documents which has to be in place by May 2001.

  The reasoning in the explanatory memorandum is quite frankly disingenuous. The Council and member states have known at least since the Amsterdam Treaty was signed in June 1997, or the Cologne Summit in June or the Helsinki Summit in December 1999 that the EU was intending to adopt a military role in conjunction with NATO. All of this was known when the Council adopted on 19 December 1999 a new measure on access extending the public register on documents to include classified documents (subject to certain conditions).

  In our view the Council and member states had known for three years that this situation would arise, namely that the European Security and Defence Policy was to be introduced and logically citizens might seek access to documents setting out policies being adopted in their name.

  The 14 August Decision was unnecessary especially in light of the current discussions on a new code.

B.  How was it adopted?

  It is interesting to note in the explanatory memorandum that the initiative came from the "Council Secretariat [which] is keen to push through amendments to the texts as quickly as possible". This confirms our information that the initiative came from Mr Solana and not from member states.

  The statement that the proposal was "taken directly to COREPER" does not match the information we have. A draft was produced, dated 12 July, just before the scheduled meeting of the Working Party on Information (WPI) on 14 July. The WPI, representing the member states, would expect to initiate any changes to the 1993 Decision or certainly expect to be given the time to consider all the implications of any proposed change. It is understood that the meeting on the 14 July was quite acrimonious.

  The Explanatory Memorandum from the Foreign Office is dated 14 August 2000—the day that the written procedure to change the 1993 Decision was completed. There was clearly no intention by the government to consult parliament or civil society on the sweeping changes introduced by the Decision of 26 July in COREPER.

  The agreement of the "Solana Decision" in COREPER on 26 July and the decision to adopt it by "written procedure"—instead of waiting until the next General Affairs Council on 18 September—smacks of a deliberate attempt to circumvent any parliamentary consultation or "fuel public discussion" on the issue. The measure was adopted by "written procedure" on 14 August and came into effect with its swift publication in the Official Journal on 23 August. When the European Parliament resumed on 28 August the measure was in place.

  It is totally unacceptable in a democracy that such a far-reaching decision on citizens' rights should be taken without any reference to parliaments—national or European—and without any consultation with civil society.

C.  What is its effect?

  Mr Solana's intentions were clear from a report at the end of June which said:

"Regarding public access to documents and the public register of Council documents, proposals have been made in COREPER to amend both Decisions in order to exclude documents regarding security and defence from their sphere of action. A similar exception should be incorporated in the proposed transparency regulation that is being discussed at present. The possibility of establishing specific rules regarding police and judicial cooperation is being examined at present." (Note for the Committee of Permanent Representatives regarding the security plan for the Council, SN 3328/1/00, 30 June 2000)

THE "MODIFIED" DECISIONS

  The new Decision on public access to Council documents, adopted by the Council by "written procedure" on 14 August substantially amend the 1993 Decision and changed it dramatically. First it amends the fundamental statement in Article 1 which stated that "the public shall have access to Council documents" by excluding, permanently whole categories of documents from access where they are:

"classified as Tre"s Secret/Top Secret, Secret and Confidential . . . on matters concerning the security and defence of the Union or one or more of its Member States or on military or non-military crisis management . . ."

  Article 2 is amended so that any document which "enables conclusions to be drawn regarding the content of a classified document" cannot be released without the "prior written consent of the author of the information". This gives NATO, the USA, any non-EU state or organisation a veto on the release of an information — moreover, this provision applies to any document whether it is classified or not.

  The effect of this clause and the term "non-military crisis management" (which is not defined) will potentially "contaminate" whole areas such as police cooperation and border controls falling under justice and home affairs. This is the more so as the EU Council meeting in Feira in June agreed that the EU should set up a 5,000-strong paramilitary police force for use in Europe and outside.

  Article 4.1, the exceptions under which documents can be refused, is amended to include: "the security and defence of the Union or one or more of its Member States or on military or non-military crisis management".

  Article 5 is amended to exclude the EU Press Officers on the Working Party on Information from considering any documents which are highly classified or any group of documents which have become "contaminated" unless of course they have been security-vetted.

  The second measure is the Decision of the Secretary-General, Mr Solana, on Thursday 27 July, to amend the 1995 Decision on the "protection of classified documents". This adds the previously secret category of Tre"s Secret/Top Secret to the classifications (who disclosure "could cause extremely serious prejudice to the essential interests of the Union"). However, these Solana amendments highlight the effect of the existing (and unamended) Article 3.1 in this Decision, it says:

"Where a number of items of information constitute a whole, that whole shall be classified at least as highly as its most highly classified constituent item."

  Thus if a series of documents concerning para-military policing or border controls which might usually be simply "Limite" and accessible to the public contains a single reference to a "Restricted" or "Confidential" document then all the documents would automatically be refused.

  This Decision is under the sole prerogative of the Secretary-General yet, for the first time, there is direct linkage between this decision and the decision to change the 1993 Decision (addition to Article 2).

  The third new decision sets out a procedure to be followed concerning access to classified documents. Top Secret, Secret and Confidential are permanently excluded. Only staff in the General Secretariat of the Council security vetted will be able to see documents at the stage of the initial request. Confirmatory applications for documents classified simply as "Restricted" (where "unauthorised disclosure . . . would be inappropriate or premature") will no longer be decided by the Working Party on Information but by the working party which produced it (officials on working parties directly working on the issue are unlikely to put openness above secrecy) and must have been security-cleared.

  Details of the fourth measure to adopt a Framework decision, under Article 34.2.b. of the TEU, to provide for legal sanctions against leaking are not yet known. However, the Solana "security plan" of 30 June says this will be based on Article 194 of the Euratom Treaty (1957). Article 194, written at the height of the Cold War, says that all officials who:

"acquire or obtain cognisance of any facts, information, knowledge, documents or objects which are subject to a security system . . . shall be required even after such duties or relations have ceased, to keep them secret from any unauthorised person and from the general public."

  The scope of this Article goes beyond documents and extends to the passing on of "knowledge". It goes on to say the Member States have to treat any infringement as being:

"within the scope of its laws relating to acts prejudicial to the security of the State . . . [and shall] prosecute anyone within its jurisdiction who commits such an infringement."

  National laws in the EU vary on this issue, most only target the official in question who has leaked information but in the UK such an action, under the Official Secrets Act (OSA), would also criminalise the recipient of the information, for example a journalist (Ireland also has a UK-style OSA).

  The amended Decision on public access to EU documents permanently excludes whole categories of documents from public access. It does not even make a distinction between policymaking (which should be public) and operations (which usually should not). Moreover, the Decision will "contaminate" other policy areas like justice and home affairs, trade and aid. If the new measure to be agreed between the Council, Commission and European Parliament includes the "Solana Decision" it will fundamentally undermine any claim that it "enshrines" the public's right of access to documents in line with the Amsterdam Treaty.

CHRONOLOGY

30 June
Solana report on Security Plan for the Council proposes "modifying" the 1993 code on access to documents.

10 July
The General Affairs Council refuses a request for access to documents by Jelle van Burren with Sweden and Denmark voting against the decision. It said:

"Although it contains only a very brief summary of the results achieved in this meeting, the Council considers that its release would run contrary to the public interest in the progress of the framing of a European Defence Policy, as it is foreseen in Article 17 of the Treaty on European Union.

In fact, an essential factor for progress in the shaping of a European Defence Policy is the establishment of a mechanism allowing close cooperation with NATO, in the context of this cooperation, the Council and some of its preparatory bodies will have to treat highly confidential information whose unauthorised disclosure would have serious consequences for the security and defence of the European Union and NATO. The latter will not accept this cooperation if the Council does not set up an absolutely reliable and credible system for protecting such information. The Council and its General Secretariat are currently examining how best to achieve this objective with a view to the conclusion of a Security Agreement with NATO."

Council letter to Jelle van Burren, dated 26 June (agreed at the General Affairs Council on 10 July) in response to a request for access to the Outcome of Proceedings of the Interim Military Working Group (IMWG). The document is not a classified one (Top Secret, Secret, Confidential or Restricted) but is simply "LIMITE", a category of documents normally released.

12 July
Solana sends "Working Document", dated 12 July, on "Consolidated version of decision 93/731 TEC with the proposed modifications" to EU governments' representatives in Brussels.

14 July
Scheduled meeting of the Working Party on Information (WPI) where the EU governments are represented by the Press Officers from the permanent Brussels delegations. After a heated discussion two member states, Sweden and Finland, walk out of the meeting.

17 July
The ANTICI Group (Brussels-based high-level representatives of the EU governments) has a scheduled meeting to prepare for the COREPER meeting on 19 July. It looks at two reports—one on options, the other the draft Decision. It agrees the report on the Decision and that it should go to the following COREPER II meeting on 26 July.

26 July
COREPER II agrees the new code with 10 voting in favour, three against (Sweden, Finland and Netherlands) and two abstentions. The same morning EU exchanges letters with NATO on the "security provisions agreement".

14 August
The new Decision is adopted by the EU under the "written procedure" process.

14 August
"Release of preparatory documents like the one in question could fuel public discussion on the subject and raise questions among the Council's partners as to the latter's reliability as regards the respect of its obligations under the security arrangements."

Council letter to Tony Bunyan, 14 August 2000 in response to a request for access to the document setting out the options for changing the 1993 Decision put before the COREPER meeting on 26 July.

23 August
The "Solana Decision" is published in the Official Journal.

SOURCES

Council Decision amending Decision 93/731/EC on public access to Council documents and Decision 2000/23/EC on the improvement of information on the Council's legislative activities and the public register of Council documents, 10702/00, 31 July 2000; Procedure for preparing decisions on access to classified documents in accordance with Article 5 of the Decision 93/731/EC as amended, 10513/1/00, 25 July 2000; Decision of the Secretary-General of the Council, High Representative for common foreign and security policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat if the Council, 10703/00, 8 August 2000; Note for the Committee of Permanent Representatives regarding the security plan for the Council, SN 3328/1/00, 30 June 2000.