Brussels, 26/09/2000 (Agence Europe) - The Council decision to restrict access to documents relating to European Security and Defence Policy (ESDP) was strongly criticised during a seminar organised last week by the EP's Freedoms and Citizens Rights Committee on public access to EU institution documents. The European Commission adopted at the end of January a draft regulation on this issue aimed, in accordance with Article 255 of the Amsterdam Treaty, to include in a regulation, as a right for the citizens, the rules which have until now been described in the codes of each institution (EUROPE 28 January). While this proposal is under discussion, the Council decided, at the end of July, to introduce a Top secret classification and exclude from the list of the ESDP documents thus classified (see EUROPE of 28 July, page 3 and of 25 August, p3).
MEPs, academics and representatives of associations have denounced the Council decision. The Swedish Ministers for Democratic and Administrative Affairs, Britta Lejon, made an especially critical speech. "It is distressing that the first action of the Council after the Commission proposal was this summer's decision to exempt a priori a whole category of classified ESDP documents from the scope of application of the existing rules on access to Council documents" she announced, denouncing the fact that some still believe that the sensitive documents cannot be protected correctly "in the framework of a system of access to documents". However the Minister underlined that this Council decision should the subordinate before the future regulation on access to institution documents, once it has been adopted. This issue "will be on the agenda of the Swedish Council Presidency", in the first half of next year, which - added the Minister - "will take care of the necessary changes to Council rules".
Hans Brunmayr, Deputy Director General of the Council responsible for "transparency" and public relations, assured that the decision taken by the Council was legal (as opposed to what several parliamentarians and academics maintained, according to whom, when a regulation is being prepared, there is an obligation to stand-still) stated a specialist in international bodies. At the same time, to the pleasant surprise of the MEPs, he recognised that the Council "is aware of the temporary nature of its decision, as it should adapt" to the future regulation on access to documents from all institutions.
Several participants denounced the NATO influence in the adoption of the Council decision. The Director of NATO security, Mr Krug, had refused the invitation made to him by the Civil Freedoms Committee to take part in the Conference. In a letter sent in his name to the President of the parliamentary Committee, Bridget Austin, the Director working in NATO security, wrote that it would be "premature and inopportune" for a NATO representative to take part in such a seminar as the Organisation that signed at the end of July a provisional security agreement with NATO "classified and non-classified, with an organisation such as the EU is a complicated and long affair" wrote Mrs Austin, who confirms NATO influence on the Council decision, since it underlines that NATO can only sign such an agreement if it answers its own standards: "an organisation or country which is not a member of NATO must have a infrastructure in terms of security which meets NATO requirements".
Mrs Palacio and Mrs Hautala explain why Legal Committee is in favour of an appeal by Parliament to Court of Justice against Council decision
During a press conference, the day after the conference, the President of the European Parliament's Legal Committee during a press conference, the day after the conference, the President of the European Parliament Legal Committee Ana Palacio (EPP, Spain explained the reasons that lead her Committee to recommend , by 13 votes against 9, to the EP President to introduce, unless there is an reasonable agreement with the Council, an appeal before the Court of justice against the decision which restricts access to documents on European Security and Defence Policy (also see EUROPE of 14 September, page.6). This decision forms in her opinion a serious violation of the European Parliament prerogatives, in the framework of the codecision procedure underway over the draft horizontal regulation, which must manage access to EU institution documents, but also a flagrant violation of the Treaty which expressly foresees the right to access to documents and refers to this procedure for setting limits. According to Mrs Palacio, by acting in this way the Council has seriously misjudged its duty for fair cooperation with the other institutions. From then on, the Parliament may with reason refer to the Court of Justice, unless a political solution is found in the meantime, she said when recalling that a "good settlement is always better than a bad trail".
"The Treaty establishes a right for citizens. It cannot be allowed to be slyly conjured away", said Ms de Palacio, who specified that, although the Treaty provides for a general right of access to documents, the exercise of this right, and its limits, must appear in a regulation adopted by codecision. She also pointed out that there could be exemptions to the limits imposed by this regulation, for example, MEPs' access to defence documents in the context of an eventual military secrets committee that would be created within the European Parliament.
While acknowledging the fact that the introduction of common defence policy may justify restricted access to documents, Finnish Green member Heidi Hautala, who is own-initiative rapporteur for the legal committee on the draft regulation concerning access to documents, explained that the Council's decisions could exclude citizens and their parliamentary representatives from everything that has anything to do with defence. "Several government are no doubt pleased with this situation", she said, adding: "Personally, I do not believe that it is realistic to hope for a friendly agreement". An agreement is only possible if: (1) the Council cancels its decision concerning the registering of documents (citizens must be able to know that a document exists in order for the principle of access to be respected even if this access is then refused), and (2) if the restrictions to access are reduced to operational questions only. Ms Hautala also deplored the European Commission's "weakness" which "undergoes Council pressure" while it could have been able to act as guardian of the treaties. She recalled it had already been necessary to modify the framework agreement on relations between Parliament and Commission following pressure from the Council, which had even threatened the Commission with refusing it access to some meetings.
Commission proposal on public access to documents of Institutions also criticised
The Commission's draft regulation on public access to the institutions was also criticised. Several experts and MEPs mainly denounced the excessive number of exceptions. The Swedish minister specified that her country "approves the Commission's proposal" but finds that it goes too far. The next Council Presidency would above all like the regulation to clearly specify that access is the rule, and give a very precise definition of exceptions, "which is not the case in the Commission's proposal".
The European Environment Bureau (EEB), a vast NGO network, also voices protest, describing the Commission's proposal as "a shocking failure" to comply with the obligation of keeping the promise of the Amsterdam Treaty concerning greater transparency of the Community decision-making process (Article 255). "If a Treaty can be so lightly disregarded, then why should Europe's citizens regard the Treaty with respect?", exclaimed Ralph Hallo,, of Stichting Natuur en Milieu (EEB member organisation). The EEB mainly reproaches the Commission for: a) not having organised public consultation on the subject of its legislative proposal; b) proposing a regulation which, by definition, will subtract internal documents from the right of access to information; c) providing a list of exceptions to the right of access which would be binding and not optional, and so long that it would allow institutions to cut themselves off from public scrutiny. The EEB also observed, and deplored, that the regulation proposed by the Commission is in contradiction with the international convention of Aarhus on public access to information - which was signed by the European Community.