EU: Solana's coup gives NATO a veto on EU openness (feature)
01 June 2000
The story of access to EU documents starts with the Maastricht Treaty, when in December 1993 the Council, to effect a Treaty commitment, adopted a code of public access to documents (Decision 93/731/EC).
A few changes have been made to the 1993 Decision on the initiatives of EU governments (except the one introducing fees to be charged for copies of documents, which has now been waived) - the creation of the public register of documents on I January 1999 under UK Presidency and the final change was the initiative of the Finnish Presidency of the EU to extend the scope to include references to all documents including classified ones on the grounds that this represented an important step towards openness and was a guard against corruption and the abuse of power.
Up to the signing of the Amsterdam Treaty in June 1997 there were many successful challenges to the Council's operation of the code of access to the Court of First Instance and to the European Ombudsman - by John Carvel of the Guardian, the Swedish Journalists Union, Steve Peers, Statewatch and others. These initiatives were built on by sympathetic governments (Sweden, Finland, Denmark and sometimes the UK and Netherlands). The commitment in Article 255 of EC Treaty adopted in Amsterdam was meant to "enshrine" the citizens' right of access to EU documents.
With the creation of the public register of documents, the commitment in the Amsterdam Treaty and a modus vivendi built up over the years working quite well it seemed a new era of openness was on the horizon.
The European Commission was charged with drawing up a draft code to put Article 255 into effect and this was finally put out in January this year. The Commission failed, despite the two and a half years time gap, to consult civil society by the publication of a discussion paper before agreeing on its proposal. By July the European Parliament had appointed six rapporteurs, with Michael Cashman MEP in the lead committee, the Committee on Citizens' Freedom and Rights. The parliament started its first consideration of general principles and laid out its timetable up to Christmas. The European Parliament then broke up for the summer vacation.
Solana's plan spelt out
Mr Solana, the Secretary-General of NATO, was appointed Secretary-General of the Council of the European Union and High Representative for common foreign and security policy on 13 September 1999. On 25 November he also became Secretary-General of the Western European Union (WEU) military alliance.
The impact of Solana's newly-created military structure was spelt out in "Note for the Committee of Permanent Representatives regarding the Security Plan for the Council" (the revised version is dated 30 June). The "Security Plan" first deals with the physical security of the Council's new military HQ at the Cortenberg building in Brussels, the vetting of staff, expansion of the Council Security Bureau and installing protection "against the activities of (human or electronic) of foreign intelligence agencies" (in the main building Justus Lipsius as well as Cortenberg).
The key section deals with the "Legal and Regulatory framework" to protect information concerning the European Security and Defence Policy (ESDP) where: "existing legislation must be amended and new texts must be adopted". This says:
1. The first "proposed amendment" is to the decisions of the Secretary-General in 1995 and 1997 to protect classified information, the screening of staff, and the handling of classified information. A new Advisory Security Committee, chaired by the Secretary-General (Solana), is to be created.
2. The second "proposed amendment" reads as follows:
"Regarding public access to documents and the public register of Council documents, proposals have been made in COREPER to amend both Decisions in order to exclude documents regarding security and defence from their sphere of action. A similar exception should be incorporated in the<