30 SEPTEMBER 2002
CASE STUDY: Secrecy and Openness in the European Union
The Ongoing Struggle for Freedom of Information
By Tony Bunyan, Statewatch

Summary

This project looks at the struggle for openness and freedom of information in the European Union over the past decade. It starts with the Code of access to EU documents introduced in December 1993 [Chapter 1] and the first challenges in the courts [Chapters 2 and 4] and to the European Ombudsman [Chapter 3]. Despite their public commitment to openness, EU institutions - especially the Council of the European Union (the 15 EU governments) and the European Commission wanted to control which documents were released and which were not.

At the heart of the issue was whether citizens could have access to the documents in the policy-making process before the final decision was adopted. Governments and the Commission wanted to keep under wraps all documents until a new policy was in place - except for selective leaks to "friendly" media outlets.

Civil society groups - journalists, researchers, academics and voluntary groups - argued that a democratic EU had to be based on true openness, that is, full freedom of information. Only then could all sections of society take a view on proposals and put forward their views. Around a number of successful court cases and complaints lodged with the European Ombudsman against the Council a civil society network came into being - journalists, academics and researchers.

When the Amsterdam Treaty was agreed in June 1997 the right of access to documents was written in to Article 255 [Chapter 5]. But we knew from experience that the "Dinosaurs" (as Mr Soderman, the European Ombudsman called them) backing secrecy would try and use a new treaty-based measure to set the clock back.

Our fears were compounded when the European Commission who were responsible for drafting the initial proposal failed to publish a "Green Paper" (to launch a public discussion) as is the normal practice - though Statewatch was leaked, and published, two unpublished drafts. When the Commission proposal for a new Regulation appeared in January 2000 it reflected the in-built secrecy of their existing practice.

As if things were not bad enough, just as all the Brussels institutions went on their summer vacation Mr Solana, the Secretary-General of the Council steamrollered through major changes to the existing code to meet NATO demands for secrecy - by written procedure, the least democratic policy-making instrument available to the EU [Chapter 6].

When the European Parliament finally got down to discussing the Commission's proposal in the autumn of 2000 their first reading report was by common consensus a "mess" and the first drafts of the Council's position was no better. At the turn of the year there were three quite different drafts on the table from the three Brussels institutions. None of these positions met the standard that the new Regulation should build on the existing code, including all the improvements brought about by civil society challenges in the courts and to the Ombudsman, and truly "enshrine" the right of access to documents in EU law as the Amsterdam Treaty promised[Chapter 7].

Instead of sorting out these differences in public, the institutions set up a series of secret "trilogue" meetings which made slow progress. So in February 2001 the civil society network called a meeting in Brussels with the three institutions in the European Parliament and told them that none of the drafts were acceptable and that the Commission should be asked to come up with a new draft proposal.

The "trilogue" meetings were a public relations disaster for the institutions as most of the discussions were leaked to Statewatch. The Presidency of the Council lost patience in April and cobbled together a typical Brussels "compromise" in which the politicians and bureaucrats effectively closed ranks and said that "this was the best that could be achieved". With the support of three of the main parties in the European Parliament this "compromise" was then adopted.

In the end, after a four year struggle in which civil society coalition won all the arguments, some of these were reflected in the new Regulation but many were not.

It has now been in force since December 2001 and new battlegrounds have emerged [Chapter 8]. The current state of play is that more information is now available, especially from the Council of the European Union. But even here there are glaring holes - thousands of documents circulated to meetings are not on their public register of documents and many are only released after people appeal the decision not to release the text of a document. Whether the new regulation has clawed back what the EU rigorously defends as the "space to think" - and what we argue is in reality the "space to act" away from public scrutiny - remains to be seen.

Since June 2002 the European Parliament and the European Commission have been obliged to make available public registers too under the new Regulation. Three months on the European Commission register is nowhere near meeting the requirements in the Regulation and only time will tell if it has any intention of opening up the most secretive of the EU institutions.

This project reflects our belief that:

"Democracy and democratic standards are not static, they are ever changing. While governments and ministers may, or may not, be open and transparent democracy cannot rely on them. Rather it is sustained by lively parliaments and an ever vigilant and critical civil society.

The fight for openness, freedom of information, and against secrecy in the EU is a small, but indispensable contribution to the maintenance of democratic standards"

Tony Bunyan
Statewatch
September 2002

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