EU: new secrecy code
01 November 1993
The General Affairs Council (comprising Foreign Ministers) of the EU (European Union) meeting on 6 December agreed a proposal to introduce blanket secrecy on a whole range of reports and documents produced for the Council (the Council is the body representing the 12 EU governments) and the European Commission. This follows the withdrawal of a proposed formal regulation in January 1993 after protests from the European Parliament, the International Federation of Journalists, and the European Trade Union Federation (see Statewatch vol 3 no 1). The new proposal is not being introduced as a regulation, which would have to be put to the European Parliament, but as an internal "code of conduct" - drawn up in secret by state officials for endorsement, in secret, by EU Ministers. The move is being strongly opposed by the Dutch and Danish governments on the grounds that the EU is meant to be moving towards more "transparency" (openness) not more secrecy, and in the interests of accountability to their national parliaments. In both countries measures to be considered, for example, by the new Council of Interior and Justice Ministers have to first be approved by their parliament before Ministers can attend the meetings and agree proposals (see next story on Holland).
The agreed proposal is contained in a "code of conduct" to be followed by the Council and the Commission from 1 January 1994. The critical effect of the proposal emerged between two drafts of the report prepared by COREPER (the permanent representatives of each of the 12 governments based in Brussels). The first dated 4 November (9678/1/93 Rev 1 (f) Restricted) says that: "The institutions (shall refuse)(may refuse) access to a document for one of the following reasons". Put simply it left open the question of shall refuse and may refuse. A supplementary report dated 10 November (SN/4969/93) says that following a meeting of the General Affairs Council which considered the first report:
"the Presidency [Belgium] proposes the following
compromise formula: Rules of exception: The Institutions
shall refuse access to any document that could interfere with [porter atteinte could also mean: damage]..." (our italics).
The so-called "compromise" came despite strong objections from the Dutch government (who said the policy of their parliament required approval of government actions before Council meetings), the Danish government (who have a parliamentary scrutiny committee prior to Council discussions) and the Greek government. The leading supporters of the proposal are the German and UK governments. The only concession gained was that it was agreed to "re-examine" the "code of conduct" after two years.
The grounds on which access to documents can be refused are set out as: "protection of the public interest (public safety, international relations, monetary stability, juridical procedures, inspection and enquiry activities); protection of the individual and of private life; protection of commercial and industrial secrets; protection of financial interests of the Community; protection of confidentiality demanded by any person, real or legal entity, who has given information, or required by the legislation of the member state which has given the information concerned; they [the Council and Commission] may also refuse such access to ensure the protection of the interests of the institution in relation to the secrecy of its deliberations".
What happened to "transparency"?
The proposal emerged from the Declaration on "The right of access to information" attached to the Maastricht Treaty. This openness of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration . It thus recommended that a report be prepared to improve public access to the information available to the institutions . A number of bodies worked on following this up. The Commission prepared two reports, in May and J