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"Solana Decision" extended to cover justice and home affairs, trade and aid

01 December 2000

Every new version of the Council's draft common position on the new code of access to EU documents is worst than the previous one. The new version (dated 1.12.00) extends the concept of "special documents" from whole categories of documents from public access to cover all areas of EU policymaking and practice. The "Solana Decision" of 26 July (formally adopted 14 August) introduced the principle of excluding all classified documents covering foreign policy, military and non-military crisis management and any group of documents which mentions a classified document. This new version does not automatically exclude documents in these categories from access, instead it says "special documents" shall be subject to different procedures.

The previous draft of the Council's (the 15 EU governments) draft common position (dated 17 November) said that: "special documents in the field of security and defence classified as "Top Secret", "Secret" and "Confidential"" (emphasis added) should receive special treatment: they are to be permanently excluded from public access. The new version deletes the words "in the field of security and defence" thus applying the concept of "sensitive" (changed from "special") documents to all areas of EU activity including justice and home affairs (policing, immigration and asylum, customs and legal cooperation), trade and aid and so on.

The effect of this would be even more far-reaching because under another Decision (amended solely on the signature of Mr Solana on 27 July) Article 3.1 of the "Decision on the protection of classified documents" 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"

The effect is this provision is that if any set of documents contain a single classified document then all the documents have to be excluded from access. Thus if a single document in a set of documents covering "non-military crisis management" or justice and home affairs refers to a classified document the whole set is permanently excluded from public access (and from the public register of documents).

The Council's draft common position (pdf format, 347k) Council's draft common position (html format)

Changes in new draft

There are a number of other changes in the new draft common position of the Council. First, for the first time it includes introductory "Recitals" numbered 1-13. Recital 2 "spins" the need for openness allowing the "citizens to participate more closely in the decision-making process", while Recital 7 refers to: "Special procedural treatment to be foreseen for certain documents on account of their highly sensitive content".

Recital 7 introduces the highly controversial, and unacceptable, concept that documents from third parties (non-EU states and agencies and EU Member States) should be included: "while respecting the right of an author of a document to oppose its release". The idea that governments, which are public bodies in a democracy, should hold the rights of "authors" (as for example, a playwright or songwriter) is the antithesis of open, accountable, government. Article 4.3 is thus also revised so that access cannot be released unless the Member State gives "its prior consent".

Recital 9 writes in the so-called right of officials (public servants) to have the "space to think" and in Article 3.a. this is spelt out. The "space to think" also comes under Article 1.3. which allows each of the institutions (the Council, European Commission and the European Parliament) to decide "which categories of documents will be directly accessible to the public" - in other words whole "categories" can be excluded. In the Council alone there are thousands of document placed on the table every year which are not included on the public register and which are cclaimed to fall under the "space to think".

There are now three references to "according to the internal rules of t