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• Chapter 5: The Amsterdam Treaty and the run-up to the new Regulation

Chapter 5: The Amsterdam Treaty and the run-up to the new Regulation

Nearly all the changes came about as a result of outside challenges which were then backed by a majority of member states. This view in no way seeks to diminish the role played by Denmark, Sweden, the Netherlands, Finland and the UK. It is simply to argue that without the external demands of journalists, academics, voluntary groups and the European Parliament for real openness these delegations' views could easily have been dismissed by the forces for secrecy.

A number of changes to the 1993 Decision were introduced in the post-Amsterdam period. Two reports were adopted by the Council under the UK Presidency in the first half of 1998. One concerned "Openness in JHA Business". (1) This includes the publication of the Presidency's calendar of meetings of the K4 Committee and Working Groups - this followed a successful complaint lodged by Statewatch in 1996; making available a progress report; having an "open debate" under each Presidency; and making available a list of measures adopted by the Council on justice and home affairs. The latter too followed a complaint lodged by Statewatch in 1996 that no list of measures agreed could be obtained from the Council except on an annual basis - a bit like a parliament meeting in secret, assuming new powers over the citizen, and only informing them of the decisions each Christmas. Of more long-term significance was the UK-initiative to get through a proposal which will put a public register of council documents on the internet from January 1999 (see below). (2)

The Secretary-General's reports

The first report prepared by the Secretary General of the Council on the working of the 1993 Decision was suppressed for three months. The Report said that the Council's policy of openness was working well - except for the challenges in the European Court of Justice by John Carvel (the Guardian), the Netherlands government, and the Swedish Journalists Union and:

"a single applicant [who] submitted 14 requests involving more than 150 documents, i.e: more than one third of all the documents requested by all applicants." (emphasis in original)

The General Secretariat's report proposes strong counter-measures to combat this unnamed applicant (of this paperback, Tony Bunyan, Statewatch's editor). The Secretary General's report went on to try and get the Council of Ministers to agree (which they did not) that the "reasons for the applicant's interest" in applying for documents should be "examined".

A report from the European Commission on access and covering the same period was altogether more honest. The problem, it said, was not that of applicants for documents (whether one or fifty) but the difficulties of applying the Code in the Commission: "due to the fact that a "culture of openness" is still lacking amongst civil servants." (3)

The second report, in 1998, showed that the number of documents requested in the period 1996-1997 was 3,325 compared to 378 in 1994-1995. This report again singled out two applicants whose applications "are manifestly excessive" and are "clearly designed to test the system". With thinly-disguised antagonism the report said there were:

"two applicants [who] alone accounted for 58% of the documents applied for. As a result of their 62 and 55 initial applications and their subsequent 17 and 20 confirmatory applications..." (4)

The interest of the General Secretariat, the permanent full-time officials of the Council, are not necessarily the same as those of the Council of Ministers (the governments). The only two changes in practice to result from their reports were the introduction of charges for photocopying and the extra month to cover their "vacational seasons".

Two other decisions are important to note. First, the revision of the classifications to: SECRET, CONFIDENTIAL, RESTRICTED and LIMITED (LIMITÉ). (5) Second, in March 1998, under the UK Presidency of the EU, the Council agreed to put a public register of documents on its website. (6) The Decision said that the register would contain "unclassified Council documents" and in order to "preserve the Council's right not to communicate a document, the register will not display the contents of the documents".

The availability of the Council's register was a major step forward. Initially the register simply listed documents and applicants still had to apply for them, later links were made available to the text of documents where they are made accessible to the public. However, a number of questions remained and still do: Are all the documents considered by the Council in its business listed? Why are so many documents not released automatically?

The Amsterdam Treaty - into battle again?

The governments of Denmark, Sweden, the Netherlands and Finland actively worked to get a positive right of access to documents written into the new Amsterdam treaty (and the UK joined them for a couple of years after May 1997). In Amsterdam a new Article 191a (now Article 255 in the revised Treaty) was added to the Treaty establishing the European Community (TEC). This establishes "a right of access to European Parliament, Council and Commission documents..". The effect was that these three institutions had to agree a new code of access within two years of the Amsterdam Treaty coming into force (May 1999).

In order to buy-off last minute opposition to the new commitment a Declaration was added at literally the last minute - in the hectic horse-trading at the Summit just three days before the formal agreement on the Amsterdam Treaty was signed. The Declaration asserted the right of a member state to request that a document originating from it cannot be released without its permission - this was to prove a major loop-hole which was exploited when the new Regulation was agreed.

Two other positive changes from the Amsterdam Treaty included the right to take complaints on justice and home affairs to the European Ombudsman and the publication of proposed measures prior to adoption by the JHA Council.

Among campaigners for openness there was an optimistic feeling that perhaps the Amsterdam Treaty really was a commitment by EU institutions to "enshrine" the citizens' right of access. The danger, of course, was that the new Regulation would be used as an opportunity by the forces of reaction to try and roll back the gains made by applicants in the operation of the current 1993 Decision.

1998-2000: the run-up to the adoption of the new Regulation

1998 saw positive advances for openness. In January 1998 Heidi Hautala, Green MEP from Finland, lodged a case against the Council in the Court of First Instance in Luxembourg over its refusal of access to the criteria for arms export adopted in 1991-92. In June 1998 the Swedish Journalists Union won their case in the Court of First Instance (see: Chapter 4).

On 6 July 1998 the Ombudsman issued a press release on Statewatch's complaints with the Council having to agree: i) that the Presidency of the EU was the same as the Council of the European Union, that is, they are not separate "authors" or institutions (see XXX); ii) to change its practice and make available a timetable of meetings on justice and home affairs issues and iii) that it was wrong to refuse access to the agendas of the "Senior Level Group" and the "EU-US Task Force" (though in this latter instance the Council was to change its mind, see Chapter 8).

In response to a complaint by Steve Peers of Essex University to the Ombudsman over the issue of the Council protecting the confidentiality of its proceedings (the "space to think") the Council argued:

"It is essential that the Council can deliberate and work without each document produced or circulate during its discussions being automatically accessible to the public, since the Council's effectiveness depends largely on its members' capacity for compromise, flexibility and openness"

This issue was to come up time and again.

The major advance for openness in 1998 was a proposal put forward under the UK Presidency of the EU for the creation of a public register of documents to be put on the Council's website and that this would go online in January 1999. (7) This initial decision only meant that bibliographic references to some documents were listed but not their contents - researchers and others still had to apply to the Council for copies of the documents (which could be refused under the exceptions in Article 4 of the 1993 Decision).

The availability of the register on the internet led to a great increase in the number of requests for documents and in the summer of 2000 the Council started to link the full-text to documents released to applicants.

However, Statewatch was leaked an instruction issued by the then-Secretary-General of the Council (Mr Trumpf) to Directors General of the Council in December 1998 - just before the public register of documents went online on 1 January 1999 - which stated that:

"Confidential, Restreint, SN and non-paper documents will not be included in the public register. For this reason, from now on these documents will not be mentioned in official Council documents (in particular; on provisional agendas and in outcomes of proceedings)"

This did not bode well, just as the door seemed to opening up the Council was to deliberately exclude thousands of documents from public view.

The three EU institutions based in Brussels had, under the new Treaty, to agree new measure by May 2001 under the co-decision procedure. However, it was unfortunate that the least open of the three, the European Commission, was responsible for drafting the new proposal on access. The normal process would have involved the Commission consulting relevant parties and then issuing a discussion paper (formally a Communication) so that civil society could take a view and have an influence on the proposal. The Commission prides itself in fact on its policy of issuing consultation papers (Green or White Papers) in advance of initiating the formal policy process. It is therefore doubly ironic that precisely on the issue of greater freedom of information and citizen participation that it did not do so.

In December 1997 an "informal" working party was set up comprised of officials from the Secretariat's of the Council, European Parliament and Commission. Over a year later, on the basis of the discussions, two draft "Communications" were drawn up dated 22 January 1999 and 23 April 1999 but no Communication was ever adopted by the Commission and made public. These drafts were leaked to Statewatch and made - unofficially - public. (8) The unpublished drafts confirmed suspicions that there were still powerful forces, especially amongst officials in the Council and Commission, who wanted to use the new rules to roll-back what had already been achieved on openness.

In a speech on openness the European Ombudsman referred to the "dinosaurs" who sought to cling to secrecy, it appeared the "dinosaurs" were on the march again. (9)

Under the 1993 Decision all internal Commission documents (like those of the Council) were in theory accessible, unless covered by one of the exceptions explicitly cited in the code of conduct.

The unpublished draft Communication said that:

"future legislation would not extend to working documents produced in the form of a contribution to internal proceedings.. This would make it possible to protect proceedings while ensuring access to the final outcome" (paper on public access to Commission documents 23 April 1999, summarising the discussions held between "officials" from the European Parliament Council and Commission).

Among its key proposals was that:

1. In place of a right of access to all documents they would be divided into two categories:
2. "Accessible" documents concerned with the legislative process - new measures on police and customs cooperation under the revised Title VI of the TEU - and Regulations and Directives under the TEC. Access to these would be granted to the citizen subject to point 2 below and the current exceptions
3. All other documents (except organisation and administrative ones) would be classified as internal "working documents" and would be "automatically" excluded from access
4. Having divided documents into "accessible" (1.a above) and non-accessible (1.b above) even "accessible"documents would be subject in addition to the current exceptions (Article 4.1 of the 1993 Decision) to which:

"an embargo [which] could be imposed.. to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of a document from giving rise to misunderstandings" or jeopardising the interest of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision.." (10)

The effect of these two proposals would mean that citizens and civil society would be excluded from public debate and the decision-making process - they would only be granted access under the "embargo" system after measures/legislation had been adopted. The division between legislative and internal working documents would also mean that all documents concerning the practices of the institution could be defined as internal working documents. In the field of justice and home affairs more than 50% of the documents produced are not concerned with new measures or legislation but with implementation. (11)

The Commission's rationale was that public servants, officials in the EU institutions, needed "freedom of thought" or "space to think" as it became known, unhampered by public scrutiny.

It was already clear to the civil society network that despite the commitment in the Amsterdam Treaty there was no guarantee it would be matched in a new code. So on 26 April 1999 Statewatch and the European Federation of Journalists (EFJ) organised a conference in the European Parliament in Brussels together with the Party of European Socialists (PSE), the European Liberal Democratic and Reform Party (ELDR) and the Green Group in the European Parliament - "Opening doors for democracy in Europe - transparency and access to documents".

All the interested parties spoke: the Council, the Commission, the European Ombudsman, the Advocate-General in the Court of Justice and six applicants for documents. The unpublished Commission "Communication" drafts were distributed - and a Commission official waved them in the face of Statewatch's editor saying: "These were leaked".

The Commission had intended to publish a "Communication" (consultation) paper in June 1999 to be followed by a draft of the new measure. However, due to the universal criticism at the 26 April conference and the intervention of the Finnish EU Presidency (who expected a positive, not a negative, approach) the paper was withdrawn from the Commission's agenda. There was thus no official consultation by the Commission, which on an issue as fundamental as openness was a disgrace.

Even the draft "Regulation" did not appear when expected and it was already two years after Amsterdam and into the countdown period (which started when the Treaty came into force in May 1999). Indeed the General Affairs Council specifically requested the Commission to put forward a proposal June/July 1999.

The Utrecht-based Standing Committee of experts stole a march on the Commission by issuing a draft Proposal on the right of access to documents together with a detailed explanatory report in July 1999. Their Proposal preserved the essential definition of what constitutes a "document" including:

"all documents produced or considered by the [three] institutions or by the subsidiary organs of the said institutions if the bodies in question were set up by those institutions or if the said institutions participate in their functioning." (12)

During the summer of 1999 Statewatch launched its "Secret Europe" webpage on its site and this together with Statewatch News online (launched in June 2000) became the primary source of information on the issue and the purveyor of many a "leak".

Unsurprisingly Statewatch was leaked a draft of the Commission proposed new "Regulation" in November 1999, which was promptly published.

The Commission formally adopted its position on access to documents on 26 January 2000 and its press release said there was the:

"necessity of maintaining a balance between a broad access to documents and the need for institutions to have "space to think" in defining policies before they enter the public domain" (13)

The Commission's proposal included the following:

1. Article 2.2 said that the Regulation would not apply to "documents already published or accessible to the public", did this mean that documents published in the Official Journal had to be bought and paid for?
2. Article 1 said the Regulation would apply to "all documents held by the institutions" but Article 3 said that the Regulation would exclude:

"texts for internal use such as discussion documents, opinions of departments and informal messages"

The effect of this would be to permanently excluded from the right of access all documents giving the "space to think" for officials and "other working papers" leading up to a policy decision or report.

3. The exceptions (grounds on which access could be refused) under Article 4 were extended too and covered i) relations between Member States and the institutions; ii) the "stability of the Community legal order" and iii) "the deliberations and effective functioning of the institutions"
4. Third parties would be allowed to veto access to documents they had submitted into the EU's decision-making process.
5. Article 7 sought to reintroduce the refusal of "repeat applications", now termed "repetitive applications" - a practice overturned by the Ombudsman in a Statewatch complaint (see Chapter 3).
6. Article 8: while the 1993 Decision said that documents could not be reproduced for "commercial purposes" without permission the Commission proposed now that access to a document could not be "exploited" for "any other economic purpose".
7. Article 11 read: "This Regulation shall be binding in its entirety and directly applicable in all Member States". This raised a critical issue, why was the Commission proposing a "Regulation" (which automatically binds member states) rather than a Decision? Surely it was asked the intention of the Amsterdam Treaty was to set rules for the three Brussels-based EU institutions, not to re-write national laws on freedom of information.

This was, in the view of civil society network, the worst possible start to the process of the EU adopting a new measure on access to documents - it was almost as if the only obligation the Commission took to heart was the need to simply produce a proposal to meet their own interests while ignoring the commitment in the Amsterdam Treaty.

The Commission's proposal now moved to the co-decision procedure under which it was for the European Parliament to adopt its 1st reading position then the Council to produce its response ("common position") on the original proposal and the parliament's view. As the measure came under the "co-decision" procedure nothing could be adopted without the European Parliament's full agreement.

In a quite different direction the Finnish Presidency tried to bequeath new measures to increase openness. On 6 December 1999 the General Affairs Council, with only Spain voting against, agreed that: i) all agendas of meetings should be published on legislative matters (this was only partially implemented); ii) that the register should include references to classified documents (this was never implemented) and iii) that from 1 July 2000 the full-text of all document released to applicants would be available on the public register - Statewatch argued that the full-text of all documents which did fall under an exception should automatically be released. (14)

In March an extraordinary row broke out when Mr Prodi, the President of the European Commission, attacked as "polemic and extreme" an article by Mr Soderman, the European Ombudsman in the Wall Street Journal. (15) Mr Soderman of the Commission's proposal: "there won't be a document in the EU's possession that couldn't legally be withheld from public scrutiny". Mr Prodi said to criticise the proposal was "a questionable use of his functions" to which Mr Soderman replied that he carried out his duties with "complete independence" and that the Statute of the Ombudsman "forbids me to accept instructions from any government or other body" (16) Mr Soderman also reiterated that the Regulation as drafted would not so much give citizen rights as make them "dependent on the goodwill of officials exercising discretion on behalf of the institution".

In April Statewatch editor Tony Bunyan took part in on online debate with Mary Preston of the European Commission organised by the leading German newspaper Die Zeit. The Commission's representative was hard to pin down especially on the issue of how many documents would be permanently excluded from the public right of access (and hence which would be included on a public register of documents) and was particularly unfriendly to regular applicants for documents, like Statewatch and Steve Peers of Essex University - who were seen as simply "testing" the system. Tony Bunyan replied that Statewatch and others were simply pursuing their research interests "rigorously" as one would expect serious researchers to do.(17)

Taking stock

Attention now moved to the European Parliament which, unusually, decided that there were to be three lead Committees, not one - under what is called the "Hughes procedure". In the Committee on Citizens' Freedoms and Rights the rapporteur was to be Michael Cashman (UK, PSE, Socialist group), in the Legal Affairs Committee Hanja Maij-Weggen (PPE, conservative group) and in the Constitutional Committee Heidi Hautala (Green/EFA group).

For many years Glyn Ford had represented the PSE (Socialist group) at meetings and conferences on this issue but he was now only a substitute member of the Committee on Citizens' Freedoms and Rights. Cashman a new MEP elected in 1999, and Maij-Weggen (an ex-Minister in the Netherlands) were, to civil society groups, unknown quantities while Heidi Hautala was already a well-known exponent for openness following her court case. (18)

There were in addition to be four other European Parliament committees who were asked to submit "Opinions" to the main committee - these were Culture Committee (Ole Andreasen, ELDR, Liberal), Petitions Committee (Astrid Thors, ELDR), Foreign Affairs (Cecilia Malstrom, ELDR) and Budgetary Control (Diemut Theato, PPE, conservative).

In contrast the civil society network of lawyers, journalists and academics had been working together for many years. The network came together during the John Carvel (Guardian) court case early in 1994 and kept in regular touch thereafter, exchanging documents and views, speaking at conferences and making interventions. Tony Bunyan and Steve Peers had lodged a number of successful complaints with the European Ombudsman against the Council on access, and Professor Deirdre Curtin, from the "Meijers Committee" based at Utrecht University, wrote extensively on the subject.(19)  These and other initiatives were supported throughout by the European Federation of Journalists. This network, which became the basis for a wider coalition later, was, in short, highly knowledgeably and experienced and sensitive to every new nuance in the drafts that were produced.

The timetable, however, was getting a bit tight. The Amsterdam Treaty had been agreed in June 1997 and had come into force in May 1999. The European Commission did not produce a draft measure until January 2000 and the European Parliament did not appoint all its rapporteurs until July 2000. The deadline under the Treaty was May 2001.

However before the parliament got down discussing its position another "bombshell" was to break, the now infamous "Solana Decision".

Footnotes

1. "Openness in JHA Business", The Presidency to K4 Committee, Limité, 5146/98, 9.1.98.
2. "Public register of Council documents", General Secretariat to COREPER, Limité, 6423/1/98, 11.3.98.
3. Report by the Secretary General on the implementation of the Council Decision on public access to Council documents", July 1996; "Assessment of the policy of public access to Commission documents: Communication to the Commission from the President and Mr Oreja", Commission, 1996.
4. Second report on the implementation of Council Decision 93/731/EC on public access to documents, General Secretariat of the Council, Limité, 6717/1/98 and 6715/2/98.
5. Decision 24/95 which came into force on 1 March 1995.
6. Public register of documents, General Secretariat to COREPER, ref: 6423/1/98 REV 1, 11.3.98.
7. agreed at the Justice and Home Affairs Council on 19 March 1998, adopted 29 June 1998: Text of the Decision
8. Draft Communication to the Commission from the President on public access to Commission documents Brussels 22.1.99 (SG.C.2/VJ.CD/D(98)12) dated First unpublished "Communication" (Statewatch translation); Discussion paper on public access to Commission documents Brussels 23.4.00 (SG.C.2/VJ/CD D(99)83): Second unpublished "Communication"
9. EU secrecy: "Brussels stitch-up" threatens right of access to documents (feature), Statewatch bulletin vol 9 no 2 (March-April 1999)
10. see footnote 8.
11. Statewatch editor Tony Bunyan commented: "Such ideas seek to reimpose the pre-Maastricht lobby-system" whereby "Brussels-based" trusted sources are given privileged access to information".
    
    12. Draft Regulation of the European Parliament and Council Regulation laying down the general principles and the limits of the citizen's right of access to documents of the European Parliament the Council and the Commission and its explanatory memorandum drafted by Professor Deirdre Curtin and Professor Herman Meijers for the Standing Committee of Experts in international migration refugee and criminal law, July 1999 from: Postbus 201 3500 AE Utrecht Netherlands.
12. Commission press release, IP/00/75. Regulation of public access to documents adopted by the Commission on 26 January: Commission proposal for a regulation on public access to documents, 26.1.00. Second draft of Commission's Regulation leaked to Statewatch: 29.11.99. First draft of Commission's Regulation: 22.10.99.
13. A position supported by a "Non-paper" from Denmark and Sweden, 6.12.99). The incomprehensible decision adopted meant that the full-text of documents only got released if a small band of people continually applied for them. It took another year until July 2001 for the full-text of many but by no means all documents to automatically be released.
14. Mr Soderman's article appeared on 24 February 2000 and Mr Prodi's reply on 9 March 2000: the "debate" between Mr Soderman and Mr Prodi: Mr Soderman/Mr Prodi
15. Letter to Mme Fontaine, President of the European Parliament, 14 March 2000.
16. Online debate organised by Die Zeit between Tony Bunyan, Statewatch editor, and Mary Preston, of the European Commission, on the proposed regulation on public access to EU documents: The debate
17. In May 2000 Tony Bunyan, while visiting the parliament in Brussels briefed Michael Cashman's assistant and supplied the basic texts and critiques and in July met with Cashman and went through the issues.
18. See the UK House of Lords Select Committee on the European Union report on access to EU documents to which Statewatch made a substantial contribution, the Lords report, published on 25 July 2000.