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Statewatch News online: Council Decision pre-empts new code of access to documents

28 March 2012

Council Decisions: 1) gives EU member states a "veto" over access to documents 2) new Solana classification code will "contaminate" access

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On Monday (19 March) the General Affairs Council of the Council of the European Union adopted (as "A" points, without debate) two more major changes to the 1993 Decision of access to EU documents - these follow the now infamous "Solana Decision" in July last year. Both pre-empt the discussions on the new code of access to documents which has to be agreed by the Council, Commission and the European Parliament (under Article 255).

The European Parliament was not consulted on either of these Decisions - although the parliament does not have to be consulted it might have been expected to have been in the context of the current discussions and the concept of "loyalty" between the institutions.

The first Decision covers making public automatically the full text of some Council documents which is a positive move. But the same Decision gives EU governments (member states) a right to "veto" access by citizens of documents submitted by them to policy-making discussions in the Council. The Council of the European Union is comprised of the 15 EU member states.

The second Decision completely changes the Council's classification codes to meet NATO demands. Although it is being presented as only covering "Top Secret", "Secret" and "Confidential" documents it also covers the lowest level of classified documents, "Restricted", and completely redefines it. It also extends classifications to all areas of EU activity.

Tony Bunyan, Statewatch editor, comments:

"These Decisions by the Council undermine the discussions on the new code of access. The Council has used the "space" left before a new code is adopted - whenever that will be - to protect the interests of governments and NATO over the citizens' right to know.

The European Parliament now has to think seriously whether the Council is going to honour the commitment in the Amsterdam Treaty and whether it is going to be possible to find a "compromise" solution to the new code of access which will not sell citizens, civil society and democratic accountability down the river."

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1st Decision: Council Decision on making certain categories of Council documents available to the public:

Draft text presented by Presidency: Draft (Word 97) Draft (pdf)
Adopted text (doc no: 6258/1/01): Adopted (Word 97) Adopted (pdf)

2nd Decision: Council Decision concerning the adoption of the Council Security Regulations (doc no: 5775/01): Security Regulations (Word 97) Security Regulations (pdf)

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Analysis: Decision on making certain categories of Council documents available to the public

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The new Decision amends the existing code of access under the 1993 Decision on which there is no obligation to consult the European Parliament. MEPs, however, may be a little surprised to be faced with yet another fait accompli while they are in negotiations with the Council over the new code of access to be introduced under the Amsterdam Treaty (Article 255). The issue of EU member states (as well as "third parties") having a "veto" over public access to documents they submit to the EU decision-making process is one of the main issues under discussion between the Council and the European Parliament.

This controversial decision is a part of a positive initiative by the Swedish Presidency to automatically place the full-text of documents which can be released on the Council's public register without citizens having to apply for them to be given out.

The first draft (document no: 5256/01, dated 12.1.01)

The draft proposal was circulated by Sweden just days after it took over the EU Presidency. Its proposal reflected the changing practices of the Council: i) in January 1999 the Council introduced its public register of documents on the internet; ii) in July 2000 the Council started to put the full-text of documents on the register after they were released to an applicant. The Swedish Presidency, backed by preparatory work already underway in the General Secretariat of the Council, proposed that the text of many unclassified documents should be automatically released onto the register without someone having to apply for them first.

This draft contained no reference to EU member states (governments) having a "veto" over access. It also referred twice in its Preamble to "Transparency and openness" - the word "openness" was deleted from the adopted draft.

The adopted Decision

The Decision adopted on 19 March 2001 has a number of significant changes, for the worse, compared to the first draft.

First, a new clause in Article 1 (Scope and general provisions) reads:

"A Member State may request the General Secretariat not to make available to the public under this Decision a document originating from that State without its prior agreement."

This gives Member States (government) a right of "veto" over access to documents submitted by them into the decision-making process of the EU. More and more EU policies are proceding on the basis of initiatives presented by Member States.

Second, the category covering "minutes of Council meetings after their approval by the Council" has been deleted. So these documents will not automatically be made available.

Third, in Article 3.2.b. the Member States are also given a "veto" over documents which mention "individual positions of delegations".

Fourth, where the original draft said that all documents concerning decisions by the Council after their adoption should be made available the adopted Decision says that a Member State can "veto" access to documents whether it reflects "the individual position of that Member State". Thus even adopted policy document can be withheld.

Chronology

12 January 2001
Swedish Presidency circulates draft Council Decision (doc no: 5256/01)

30 January
A revised report (doc no: 5666/01) on the agenda of COREPER (Item 41). At the meeting most EU member states supported the report and it was put forward for adoption at the ECOFIN Council on 12 February.

1 February
UK parliament expresses concern at the significant differences between the first and second draft. UK places a parliamentary scrutiny reservation on the measure.

15 February
New report (6258/01) plus on 16 February (REV 1, doc no: 6258/1/01) to COREPER with a view to early adoption subject to UK withdrawing it reservation.

End of February
UK parliamentary reserve withdrawn. UK government in favour of the report as drafted.

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Analysis of Draft Council concerning the adoption of Council Security Regulations (SN 5677/00)

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Overview

The Decision and Annexes cover security arrangements to be put in place by the Council to bring its security procedures "in line with standards in NATO" (Explanatory memorandum, 21.12.00).

It is intended that this Decision should replace three previous Decisions including the recently adopted Decision of the Secretary General/High Representative of 27 July 2000 (2000/C239/01) on measures for the protection of classified information applicable to the General Secretariat of the Council (document no: 10703/00, 8.8.00).

The bulk of the Annexes are unexceptional in that they contain standard security procedures in EU member states for domestic security and NATO purposes.

The scope

The proposed Decision is not limited to foreign policy and security issues (ESDP), it would apply to classification and security procedures in all areas of Council activity.

As noted in the Explanatory Memorandum of 18 January 2001 from the UK Foreign Office:

"the Regulation will also mean that sensitive documents in other fields - justice and home affairs, for example, are kept sufficiently secure."

This is a clear extension of classification rules and security procedures from the "Solana Decision" adopted in August 2000 which only covered ESDP issues.

The Decision would cover not only justice and home affairs aspects of "non-military crisis management" but justice and home affairs issues in their own right. It also implies that other policy areas like aid and trade could be affected too.

It is thus important to bear in mind that although the proposed Decision is motivated by the need to satisfy "NATO standards" the changes will affect all areas of EU policy not just ESDP.

Another caveat has to be made about the scope of the proposed Decision. No distinction is made between policy-making and operations. Policy-making should normally be in the public domain and subject to democratic discussion.

Certainly operational "details" would usually require the highest level of protection in the ESDP field. On the other hand this may not always be the case in the field of justice and home affairs. For example, Europol is empowered to initiate and help coordinate "controlled deliveries" of both drugs and of people (migrants) and has undertaken a number of such operations. Were Europol to decide to initiate, in cooperation with a number of EU member states, the "controlled delivery" of "illegal" immigrants and in the process a number of these people died or were seriously injured might it not be in the public interest that such an operation be open to scrutiny (whether in court or in national parliaments) with a view to revising the existing policy?

"Contamination" of the code on access to EU documents

The Decision of 27 July 2000 replaced Decision 24/95. The substantive change in the former was the inclusion of the classification "TRES SECRET/TOP SECRET" for the first time and the insertion of a reference in the preamble to "military and non-military crisis management."

One provision in the 27 July 2000 Decision (and Decision 24/95) although unchanged took on a different meaning after the "Solana Decision" and is of even greater importance under this proposal.

Article 3.1 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."

If this new regime is to be introduced covering not Top Secret, Secret and Confidential documents but also those given the classification "Restreint" it could - to use EU jargon - "contaminate" whole areas of policy discussion. This is especially so where a set of documents, which may be nearly all "Limite" (unclassified), contain a reference to a single "Restreint" document.

In the same way "contamination" can occur because a "military" or more likely a "non-military crisis management" document is mentioned in other documents which would otherwise be accessible.

"Subversive"

Another form of "contamination" is the use of concepts, more appropriate to the military and intelligence fields, in reference to EU policies as a whole. For example, the use of the term "subversive" (pages 10, 14, 23 and 48).

The use of such concepts when employed in fields such as justice and home affairs (which includes public order), in conjunction with the "Restricted" classification where documents might "prejudice the investigation or facilitate the commission of crime", could lead to the covering up of situations that should be subject to public scrutiny and policy review.

Restricted documents

Of particular concern are documents classified as "Restricted". The Decision of 27 July 2000 defines "Restricted", the lowest level of classification, as:

"RESTREINT: information the unauthorised disclosure of which would be inappropriate or premature"

In the Annex, page 19, to the proposed Decision this is redefined as:

"EU RESTRICTED: This classification shall be applied to information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or one or more of its Member States."

This definition which substitutes "disadvantageous to the interests of" for "inappropriate or premature" is of stronger force than the present definition.

It should also be noted that, unlike the Decision of 27 July 2000, the proposed Decision contains no definition of LIMITE or SN documents.

However, it is the definitions offered in Appendix 3 - "Practical Classification Guide" which are, we believe, a cause for serious concern.

Here "Restricted" is defined as applying to:

"The compromise of assets marked EU RESTRICTED would be likely to:

- adversely affect diplomatic relations;

- cause substantial distress to individuals;

- make it more difficult to maintain operational effectiveness or security of Member States or other contributors forces;

- cause financial loss or facilitate improper gain or advantage for individuals or companies;

- breach proper undertakings to maintain the confidence of information provided by third parties;

- breach statutory restrictions on disclosure of information;

- prejudice the investigation or facilitate the commission of crime;

- disadvantage EU or Member States in commercial or policy negotiations with others;

- impede the effective development or operation of EU policies;

- undermine the proper management of the EU and its operations." (page 78)

This lengthy definition is clearly much, much wider that of "inappropriate or premature" in the 27 July 2000 Decision.

Furthermore, categories like "prejudice the investigation or facilitate the commission of crime" or "impede the effective development or operation of EU policies" or "undermine the proper management of the EU and its operations" are so wide as to be open to abuse.

Destruction of documents

Paragraphs 31-34, pages 39-40 deals with the "Routine Destruction of EU classified documents" and covers all four classification categories. It is highly questionable whether all such documents should be "routinely" destroyed and removed from the historical record (whether to be released after 100, 50, 30 years is another issue).

To take an example, under "non-military crisis management". It is not inconceivable that a "situation" could arise in an area of the world, or a specific country, where the interests of the EU are seen to be threatened (the "threat" could be to utilities like the supply of oil or gas or the economic interests of EU companies). In such a situation a whole series of policy documents would be prepared covering aid, trade, diplomatic relations, policing missions, judicial missions, border control missions as well as a military presence. It must surely be in the public interest that such documents are potentially available for scrutiny and review.

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