European Parliament settles for limited access to documents
01 August 2002
One of the outstanding matters in implementing the Regulation on access to EU documents (1049/2001) was settled at end of October. The European Parliament agreed a report on its access to sensitive documents from the Council of the European Union covering security and foreign policy.
When the Regulation was going through the parliament in 2000-2001 it was argued that a safeguard would be in place to ensure that, even it citizens could not get access to classified documents (listed as "Top Secret, Secret and Confidential"), the European Parliament would ensure they were subject to necessary scrutiny. At the time civil society groups argued that the fourth and lowest classification, "Restricted" was not covered by the citizen's right of access nor apparently, under Article 9, the proposed agreement between the parliament and the Council.
The report adopted by the parliament at its plenary session was prepared by Elmar Brok MEP, chair of the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy. He writes in the Explanatory Statement that "quite significant opposition in the Council had to be overcome and the parliament too, had to make concessions".
The interinstitutional agreement (known as an IIA) is based on the parliament’s general right to be "consulted" (under Article 21 of the Treaty on European Union) on the main aspects of policy and the specific Article 9.7 in the new Regulation which says the Council is to "inform" the parliament regarding sensitive documents as defined in the IIA.
The IIA does not cover the "Restricted" classification - this category carries most classified documents. Civil society had warned that officials might be tempted to upgrade a potentially embarrassing "Limite" (unclassified) document into this category to keep it from public view.
The notorious "third party" veto over citizens' access to documents (Article 4.4 and 4.5) is maintained for the parliament (Article 1.2). This allows EU member states and third-parties like NATO, WTO and the US government to veto access.
Article 2.1 of the IIA expressly states that documents concerning "non-military crisis management" (that is, for example, policing matters) are covered.
Most extraordinarily of all it appears that the parliament is not to be supplied with copies of sensitive documents but has to request them (Article 2.2). How will the parliament know what documents have been produced in order to request them?
Any request for sensitive documents has to be made through either the President of the parliament or the chair of the Committee on Foreign Affairs. Subsequently a "special committee", chaired by the Chair of the Committee on Foreign Affairs, plus four MEPs chosen by the "Conference of Presidents" (the leaders of the political groups) can "consult the documents on the premises of the Council" (ie: they cannot copy and take them away) or in some instance copies will be sent over to the parliament (if the Council agrees) - when one of four options can (with the agreement of the Council) be taken. The four options do not apply to "Top Secret" documents which can only be viewed by the Chair plus four MEPs.
The options are: i) copies only to the Chair of the Committee on Foreign Affairs; ii) copies to members of the Committee only; iii) a discussion in the Committee in camera (in secret); iv) documents to the Committee with certain information "expunged".
The pre-condition for implementing the IIA is that all MEPs getting access have to be security vetted.
A similar agreement covering justice and home affairs issues is expected to follow soon.
It is very hard to see how this agreement, or future ones, will in any way guarrantee proper parliamentary scrutiny and accountability.
Another "concession" made by the European Parliament as part of this deal is to drop its court case against the Council for failing to consult it over the adoption of its Security Regulations.
Brok report date