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EU: Council want more secrecy less openness and are taken to court over the "Solana Decision" (feature)

01 September 2000

When the European Parliament (EP) came back to work after the summer break on 28 August it faced the Council (the 15 EU governments) having adopted the "Solana Decision" (to exclude permanently from public access documents on foreign policy, miliary and "non-military crisis management") (see Statewatch, vol 10 no 3/4). In October the parliament decided to take the Council to the European Court of Justice over this decision, as did the Netherlands and Swedish governments.

The committees in the EP have been considering its response to the Commission's proposed new code of access started and the parliament will adopt its "first reading" opinion on 15 November (see below). The Council's draft "common position" is looked at below. The new code has to be agreed by the Council, Commission and the European Parliament under the "co-decision procedure" by May 2001.

France and Germany lead call for more secrecy

In mid-October Statewatch obtained a copy of the Council's detailed draft common position on the new code. The Commission's proposed code of access would undermine existing rights of applicants to documents. The Council's position is even worse. The report contains full details of the positions taken by all EU governments on the Council basic draft position. Only Sweden, Finland, Netherlands and Denmark are seeking to ensure that the new code is an improvement on the present one. Germany and France are leading the fight to bring in more secrecy and less openness. A number of governments, including the UK and Ireland, are "sitting on their hands".

Where, in Article 1, the Commission proposed that citizens should have "the right of the widest possible access" the Council wants to delete the words "widest possible".

Only Denmark, Netherlands, Finland, Sweden and Italy back giving non-EU people (the people affected such as third world countries, refugees and asylum-seekers) access to documents. A Footnote on Article 2, which deals with the "Scope" of the code, says that defence and military matters "would be addressed in a separate paper" - this refers to the introduction of the "Solana Decision".

Article 3 deals with the "Definition" of a "document" and the Council agrees with the Commission that officials must be allowed the "space to think" (this will permanently deny access to innumerable documents). Only Netherlands and Finland want to delete this idea.

Also under Article 3 the discussions in the Council are very revealing on the way the Council's Legal Service interpret the current 1993 code of access. The report says that the Legal Service's "current interpretation and practice" is that "documents" only includes those sent to the Council's working parties and committees and nothing else - this is quite clearly in contravention of the current code.

On "repeat applications", where Statewatch took and won complaints against the Council through the European Ombudsman, the Council's position goes really over the top. The Commission proposed that "repeat applications" should be replaced by "repetitive applications " (regular applications on the same subject field, like those made by Statewatch and others) and the Council agrees. Only Denmark, Finland and Sweden are opposed to this change. France wants to make it even worse by putting in "repetitive or blatantly abusive applications".

In Article 4 on "Exceptions", the grounds on which access to documents can be refused, the Council want to have a lower test than the Commission. They want to delete the word "significantly" from: "where disclosure could significantly undermine the protection of.."

The Council want to give non-EU states and international organisations an absolute right of "veto" over the release of documents to EU citizens. Their draft position says that "institutions shall not release" such documents without their "prior agreement".

In Article 7 the Council want to delete the Commission's pro