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European Parliament takes Council to court for failure to consult over new (NATO) classification code - the "Solana Two Decision"

01 October 2001

The European Parliament is taking the Council of the European Union to the Court of Justice over its failure to consult the parliament over the adoption of a new classification code for access to documents in March 2001. The parliament argues that this was quite inappropriate as the institutions (the parliament, Council and the European Commission) were in the process of adopting a new Regulation on public access to documents: European Parliament case against the Council

The Secretary-General of the Council, Mr Solana, drew up the new classification code which was simply nodded through by the General Affairs Council of the Council of the European Union on 19 March (it was an "A" point, adopted without debate) - the European Parliament was not consulted. This followed the now infamous "Solana Decision" in July last year: The Solana Decision, July 2000

The Decision completely changed 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.


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Full-text: Council Decision concerning the adoption of the Council Security Regulations (doc no: 5775/01):
EU/NATO: Security Regulations (Word 97) Security Regulations (pdf)

Analysis of the Council Decision concerning the adoption of Council Security Regulations

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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" (UK 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 ma