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• Chapter 7: The battle over the new Regulation

Chapter 7: The battle over the new Regulation

The repercussions from the "Solana Decision" carried into the autumn following widespread and highly critical press coverage.

Not only the European Commission quickly backed the "Solana Decision. The first draft reports from the European Parliament in early August came from Michael Cashman (PSE Socialist group) the rapporteur in the Citizens' Freedom and Rights Committee and Hanja Maij-Weggen (PPE Conservative and Christian Democrat group) the rapporteur for the Constitutional Affairs Committee. The Cashman report dated 3 August incorporated the "Solana Decision" even before it was formally adopted on 14 August. Embarrassed by the publicity in the media and especially the lack of consultation with parliaments and civil society the two rapporteurs issued a revised report appeared after the summer vacation on 14 September.

The "Solana Decision" was dropped but now a "Common Position" (joint report) was adopted by Cashman (PSE) and Maij-Weggen (PPE) in what some were to call an "unholy alliance" of the two largest parties in the parliament. PSE/PPE: "Common position"

On 18 September the EP's Committee on Citizens' Freedoms and Rights held a "hearing" in Brussels on the new code. All the key players spoke the Council the Commission the European Ombudsman Europol Michael Cashman (PSE) Hanja Maij-Weggen (PPE) and Heidi Hautala (Green). The "applicant for EU documents" from civil society to be invited to speak was Tony Bunyan, Statewatch editor. NATO declined to send a speaker and the letter to the chair of the Committee on Citizens' Freedoms and Rights raised further issues: NATO letter

For the Commission the Secretary-General David O'Sullivan put the case for officials to have the "space to think" (that is to exclude innumerable documents from public access). But it was Mr Hans Brunmayr Deputy Director-General in the Council standing in for Mr Solana who had the most thankless job trying to defined the "Solana Decision" on the grounds that it had been "urgent".

On 20 October the Conference of Presidents in the European Parliament agreed that Council to be taken to court over "Solana Decision", with the PSE (Socialist group) and two rightwing groups abstaining. The stand taken by the European Parliament received powerful backing when the Netherlands government announced on 22 September that it too was to take court action and they were joined by Sweden and Finland.

The "Common Position" (joint report) from Cashman (PSE) and Maij-Weggen (PPE) finally went to the Committee on Citizens' Freedoms and Rights on 23 October. It was adopted by 28 votes to 4 with 2 abstentions - however, the apparent unanimity was misleading. A total of 114 amendments were proposed largely reflecting the "Opinions" adopted by other Committees - all but a few were rejected. To see all the different draft positions from the Commission, Council and European Parliaments, please see the Observatory

In the parliament's plenary session on 16 November the Cashman/Maij-Weggen report, with a few amendments, was adopted as the 1st reading position by 409 votes to 3 with 44 abstentions (the Green group). A series of amendments which would have improved a weak report from the Green and ELDR (Liberal) groups were routinely voted down by 300 votes to 135: Account of the vote and the report adopted, 16.11.00

The debate in the parliament was notable for two reasons. First, as is the practice, a representative of the European Commission was present to comment on the parliament's report. This was Loyola Palacio, a Vice-President of the Commission, who told the parliament that the Commission was opposed to 12 new Articles in the parliament's report and 19 further clauses and went on to say:

"Obliging institutions to divulge internal notes, in many cases, would only cause confusion among citizens.. sometimes an increase in misinformation results from an excess of information"

Second, Michael Cashman said of critics of the report:

"I regret the report has been misrepresented by some for short-term political gain. A few cheap headlines, a few inches of print remove such people from reality"

This came as news to those who had read the report and its "Explanatory Note" which stated that the draft measure put forward by the Commission in January represented current practice, and:

"in fact only confirms the existing situation as defined in the Council/Commission codes of conduct, the jurisprudence of the Court of Justice, and the decisions of the institutions before the entry into force of the Amsterdam Treaty"

Not only was this statement utterly inaccurate - the Commission's draft was far worse than the then practice (draft measure undermines current rights of access) - it showed a complete ignorance of the struggles by civil society since 1993 to open up EU institutions.

The fundamental problem with the report was that it bore no relation to the existing 1993 Decision. The civil society network's analysis called for 12 deletions and 9 amendments: Civil society amendments The report adopted by the parliament contained no less than six references to new "rights" for the Brussels institutions (most of which were even opposed by the Council). It contain some positive aspects: i) giving no-EU people the right of access to EU documents; ii) that third parties should not have an automatic right of "veto" over access; iii) it opposed the Commission's proposal that "repetitive applications" should be penalised.

The report: accepted the "space to think" for officials, added a new exception covering "military matters", suggested that "sanitised reports" from non-EU governments and bodies could be given to the public, proposed the repeal of the 1983 Regulation on the creation of EU archives (a patently daft idea and anyway a new "Regulation" cannot repeal other "Regulations") and accepted that certain documents (eg: those covered by the "Solana Decision") should be excluded from access.

Throughout the civil society network used two arguments:

i) historical: the 1993 Decision was not perfect but civil society groups and individuals worked with it. Appeals were launched in the European Court of First Instance and complaints made to the European Ombudsman, each leading to improvements in the application of the 1993 Decision. Ongoing applications for documents also brought advances. The four year struggle, 1993-1997, culminated in the commitment in the Amsterdam Treaty to "enshrine" the citizens' right of access to EU documents (within specific and limited exceptions as decided by the Court). The network expected that any new Code/Decision/Regulation would build on this experience and extend it.

ii) critiques as to the inadequacy of the institutions positions: Given the historical record the first test the network applied was: would the new measure diminish or extend rights under the existing 1993 Decision? Are the "new" rights being offered, real rights?

It was the expectation, however naive, that rational argumentation, widely disseminated, could influence the debate in the Brussels powerhouse.

By mid-November 2000 there were two completely different proposals on the table, one from the Commission and the other from the European Parliament, and a leaked draft of the Council's view (under the French Presidency) in October which was different again (and even worse than the other two). None maintained existing rights and all sought to impose new limits on access.

In the face of these three divergent views amongst the Brussels institutions the civil society network launched a number initiatives. (1)

"Essays for an Open Europe" was published by the European Federation of Journalists (EFJ) with three contributions from Professor Deirdre Curtin (Utrecht University and a member of the "Meijers Committee), Tony Bunyan (Statewatch editor) and Aidan White (General Secretary of the EFJ). Over three thousand copies were sent out and thousands more were downloaded from the internet. The Introduction said:

"In the "corridors of power" in Brussels the positions of the institutions indicate that they are heading for more secrecy and less openness. Indeed they seem more concerned with establishing rights for themselves (through so-called interinstitutional "deals") than for the citizen.

These essays have therefore been written to encourage a much wider debate throughout the whole of civil society so that its voice can be heard in a way that cannot be ignored. Access to documents in the EU is not a "gift" from on high to be packaged, sanitised and manipulated, it is a "right" which is fundamental in a democracy"

Alongside the "Essays" a "Call for an Open Europe" was launched online and hundreds immediately signed up.

Statewatch launched an "Observatory" carrying all the reports from the three EU institutions full-text literally as they appeared. This became a primary resource for civil society, the media and even governments.

The object was to raise the level the debate in the wider civil society and media and perhaps, either directly or indirectly get the institutions to think again. The response to the "Essays", "Call for an Open Europe" and the "Observatory" was enormous and by Christmas 2000 we were certainly winning in the public debate through the strength and depth of our arguments.

Council draft positions

The Council's draft "common position" was set out on 17 November and revised on 1 December 2000. (2) These drafts were drawn up by the French Presidency of the Council and included the following:

a) "special procedures" were to apply to all documents concerning defence, foreign policy, non-military crisis management, justice and home affairs and to any document, or set of documents, which referred to a document in these categories. This in effect removed these documents from the general right of access and made them subject to "special procedures".

b) The "space to think" for officials, including all preparatory documents, were to be excluded from access.

c) "third parties" with the right to veto access included not just non-EU state (like the USA) but also international organisations (like NATO) and EU member states. The effect of the latter meant that documents submitted by EU governments to EU discussions could be vetoed.

By January 2001 the decision-making process was in confusion. When the European Parliament agreed its report on 16 November it also put off formally adopting it as its 1st reading position - in order to allow for negotiations to take place between the parliament and the Council.(3) The Council, on the other hand, was not formally obliged to adopt its "common position", under the co-decision procedure, until after the parliament formally adopted its 1st reading position. In the event, the European Parliament's 1st reading became the "final" reading in May, as its text was identical to that acceptable to the Council.

This meant that the resolution of the substantial, irreconcilable, differences between three inadequate drafts by the institutions took place in the "shadows", in secret meetings behind closed doors - and but for the role of the civil society network making leaked drafts with critiques available on the internet the whole process would have taken place in virtual secrecy.(4)

In January secretive decision-making found a new ally: the European Parliament which participated as an institution in so-called "trilogue meetings" with the Commission and Council. These trilogue meetings had been used at a late stge in the decision-making process where no agreement could be reached between the Council and the European Parliament and after a second reading by the full parliament. What was new in January 2001 was that the European Parliament participated in such meetings with the Council even before a first reading position has been adopted by the parliament. Moreover, these highly secretive meetings were conceived and engineered by the incoming Swedish Presidency, a long term supporter of openness in the EU. Three meetings were held on 24 January, 6 and 14 February but little progress was made. At this stage the member of the European Parliament's negotiating team included the three lead rapporteurs - Cashman, Maij-Weggen and Hautala - plus the four rapporteurs from the other committees (Andreasen, Thors, Malstrom, Theato).(5)

In this hiatus Statewatch and the European Federation of Journalists took the initiative and organised an open "working seminar" in the European Parliament in Brussels on 27 February 2001.(6) All the parliament rapporteurs, the Commission, the Council and the Swedish Presidency were invited and accepted. All the civil society groups in the extended network were there too - European Citizens Action Service (ECAS), the European Environmental Bureau (EEB), Bankwatch, Professor Deirdre Curtin (Utrecht University and member of the "Meijers Committee") and Steve Peers from Essex University.

We put before the meeting a critique of the latest draft "compromise" and prepared and distributed: "Our code - a model code of access to EU documents for civil society" - this put forward a detailed new code with argued justifications on every point.

The institutions and parliament rapporteurs spoke first and at great length and as one observer commented: "They spent most of their time talking to each other. They came, heard, went away and ignored our views".

All the civil society groups and individuals in the network spoke and all made the same broad points that the draft on the table was unacceptable because: i) it removed existing rights under the 1993 Decision and subsequent decisions by the court and Ombudsman; ii) it failed to meet the commitment in the Amsterdam Treaty to enshrine the right of access; iii) it gave more new "rights" to the institutions than to citizens; iv) the draft should be put in the bin, a new draft be put forward and all future discussions to be in public (7) - and that the 1 May deadline was unimportant compared to getting a meaningful new code.(8)

The rapporteurs, the Council and Commission were left in no doubt as to the views of civil society - and they should not have been at all surprised, as some were, when later the network wrote an "Open letter" to all MEPs calling for the proposal to be rejected (see below). On 7 March the secret "trilogue" meetings started again.(9)

On 25 March the European Federation of Journalists issued a press statement calling for the existing drafts to be abandoned and a new draft to be prepared which would meet the need to "enshrine" the right of access.

In the last week of March the "trilogue" process almost broke down as the Council was showing little willingness to make changes. Then the Council lost patience, member states it was said were getting tired of the subject and fed up with an increasingly critical media and civil society - they were losing the arguments hands-down, the secret "trilogue" meetings were a PR disaster, and NATO documents were ending up on the internet.

For the first time on 2 April, at a specially called meeting of the Committee on Citizens' Freedom and Rights in Strasbourg, a mandate was set for negotiations with the Council by the parliament's delegation - and the delegation was now limited to Graham Watson, chair of the Committee (10), Cashman and Maij-Weggen (11) (under so-called "reinforced Hughes procedure", Heidi Hautala, a co-negotiator under the "Hughes procedure" and the other rapporteurs were excluded). (12) By 3 April a "common text" was in circulation and included major changes. These were largely in response to the assertion of the Swedish Presidency that there were a number of "non-negotiable" issues including: the right of EU governments to veto access to documents, "sensitive documents" (the "Solana Decision") and the inclusion of a "public interest" test for the exceptions - grounds on which documents could be refused.

The civil society network immediately prepared an analysis of the new "common text" calling for 17 deletions and 6 amendments - this was circulated to all rapporteurs and put on the internet. Another analysis was also prepared and circulated showing how the "common text" undermined or took away existing rights.

The Committee on Citizens' Freedoms and Rights was due to discuss the "common text" ("deal") at its meeting on 25 April and the deadline for amendments to be put in was Wednesday 18 April. On Thursday 12 April (the day before the Easter Bank Holiday), the main rapporteur Michael Cashman (PSE), contacted Statewatch asking for our views by the Tuesday after Easter. The e-mail said:

"If you have any amendments to make to these [the report], I would be happy to receive them. I cannot promise as to my agreement, but I'm happy to see your ideas and see what we can do."

Over the four-day holiday period the coalition of civil society groups prepared and agreed detailed amendments with justifications and sent them to Cashman on Tuesday 17 April as requested.

On Wednesday 18 April Cashman replied rejecting all the suggestions, saying:

"I will be sticking as closely as possible to the common text [the "deal" agreed with the Council]."

Why Cashman bothered to consult civil society remains a mystery.

The civil society network sent its first "Open letter" to the Committee on Citizens' Freedoms and Rights' out in time for its meeting on 25 April, together with argued amendments. The agreed "deal" was steam-rollered through: Report on the Committee meeting

"Open letter" from civil society

The civil society coalition then prepared a second "Open letter" from civil society to the plenary which went out on 2 May (the day of the debate) to all MEPs. The letter was put out in the name of all the groups, representing between them hundreds of EU organisations, who had been active on the issue - the European Citizens Action Service (ECAS), European Environmental Bureau (EEB), European Federation of Journalists (EFJ), the Standing Committee of Experts on International Immigration, Refugee and Criminal Law (the "Meijers Committee") and Statewatch. Over four thousands copies of the "Open letter" were downloaded from the Statewatch website that single day. Every MEPs got a copy by e-mail and another in their mail pigeon-holes.

The vote in the parliament took place on 3 May 2001 (World Press Freedom Day) and the proposal on the table had been agreed with the Council. The vote was 400 in favour, 85 against and 12 abstentions. The two largest political groups in the parliament, PSE (Socialist, social democrat) and the PPE (conservative), together with the ELDR (Liberal) group voted in favour. Three groups voted against: the Green/EFA group, GUE (European United Left) and EDD (Europe of Democracies). (13)

The parliament's negotiating team (Cashman, Maij-Weggen and Watson) had hoped to get the unanimous support of the parliament and were very angry with the "Open Letter".

What they did not understand was our anger, not just at the content of the new Regulation but also the secret process of negotiations, which offended basic democratic standards.

In retrospect it is clear that, from 2 April up to the vote on 3 May, the three Brussels institutions were intent on reaching a "compromise" and adopting it by the May deadline.

Key players from the institutions admitted - after the event - that the Cashman/Maij-Weggen report adopted by the parliament in November 2000 was a "mess" and that the secret "trilogue" meetings were "quite inappropriate" for a measure of such public importance.

In retrospect too it is clear that with a few rare, and very honourable exceptions, civil society and the MEPs were "speaking a different language". We came from a long history of struggle to establish a true right of access to documents for citizens based on the positive rights in the 1993 Decision, as improved by decisions of the Court of First Instance and the European Ombudsman, and "enshrined" in the Amsterdam Treaty. At every stage we produced and put out detailed analyses of the texts, perhaps believing that rational argument would win out over institutional self-interest.

MEPs, on the other hand, sought to reach an agreement within the normal Brussels "milieu" of "compromise" and fudge and to present the outcome as a "victory" establishing "new rights" for citizens and for which we were meant to be grateful.

Footnotes:

1. In December 2000 we also undertook a survey of the 33 confirmatory applications (appeals) lodged with the Council against refusal of access to documents. This illustrated which EU governments had a consistent record of backing access and which did not: Analysis of EU governments' positions on appeals

2. Council "common position" remain drafts until they are formally adopted, which under the co-decision procedure is after the European Parliament has adopted its 1st reading position.

3. This was done under Rule 69 of the parliament's rules of procedure which authorises negotiations with the Commission, not the Council.

4. The struggle for getting access to documents went on unabated during this period. As an example there was the Council's refusal to give access to documents concerning the interception of telecommunications: Council refuses access

5. On 6 February the UK House of Lords Select Committee on the European Union issued a highly critical report on the "Solana Decision" (HL Paper 31), this included the comment that it was totally unacceptable for the parliament to be informed on the measures on the day of their formal adoption (14 August 2000).

6. This took place ironically in the room where co-decision meetings between the institution are held with the seats arranged in a hemisphere with no hierarchy.

7. Embarrassingly for the parliamentary negotiators the EP's Vice-Presidents had just produced a report on informal "trilogue" meetings with the Council and recommended that they should only be used to "fast-track... uncontroversial measures". Discussions they said should be conducted in full, open, Committee meetings where the Council (and Commission) present their views and all documents are publicly available: Report on co-decision negotiations

8. It was not unusual for treaty deadlines to be extended. We made this point strongly because the Brussels "spin machine" was putting it about that if they did not meet the deadline one or more civil society groups would take them to court.

9. On 19 March the Council, again without consulting the parliament, adopted the NATO Security classifications, see Chapter 8.

10. Graham Watson, who was very supportive of the openness cause, had taken a stand on a number of issues and written to the Council and Commission on two occasions: 18.12.00 and 6.2.01 saying that: i) the new Regulation must not be "a step backwards from the current situation"; ii) expressed concern of the "space to think" and iii) said that third-party vetoes on access to documents was unacceptable.

11. The parliament's delegation had also included Charlotte Cederschold, a Swedish PPE (conservative MEP), who had no apparent standing.

12. Observers inside the parliament expressed some concern at this new development as neither the Committee on Citizens' Freedoms and Rights nor the Constitutional Affairs Committee had much experience of enacting legislation through co-decision, while the Committee on Legal Affairs did.

13. The "deal" was adopted at the meeting of the General Affairs Council on 14-15 May.