Authoritarian temptation seduces EU decision-makers

By Deirdre Curtin

Listening to the speeches of Europe’s political leaders in recent months it is difficult to suppress the sentiment that they are not being quite serious. So many "grand" visions of the future of Europe have been launched over the course of the past twelve months (Joschka Fischer, German Foreign Minister, Jacques Chirac, French President, the Prime Minister of Belgium, Guy Verhofstadt, the British Prime Minister, Tony Blair, the German Chancellor Gerhard Schöder, to mention but a few). Each in their own way has presented their particular take on the future of the European integration process post Nice.The rather pedestrian outcome of the Treaty of Nice in attempting to ensure that the European institutions operate in an efficient manner after the next rounds of enlargement (a new Europe of 25 to 30 members) is for many European political leaders too meagre a diet. A European Union with very imperfect democratic legitimacy and ill functioning cannot be the end station of what they have in mind, no matter how many new members it acquires. The politicians horizons have these past 12 months shifted not so subtly away from the size of the EU to the ultimate goal of the European unification process.

How must a European Union with so many members be conceptualised, in which areas must a common European policy be pursued together and what should the renewed EU’s role in the world be? Progress in each of these regards is said to be possible only if the ultimate goal to be achieved is formulated first. According to the Belgian prime minister: ”Any process comes to a standstill when we lose sight of the objective. That is how it works. It is the dynamics caused by the debate about the ultimate goal that is the strength of the European integration. If these dynamics are no longer there, the European unification is threatened by stagnation. Actually, the European Union may be compared to a bicycle. It must move forward, otherwise it falls.”

But the fundamental question is surely in what kind of Europe do we want to live? Verhofstadt claims that “we all would like to live in a Europe that is built on European values of democracy, respect for human rights, rule of law and the cultural and political diversity which is our richness. In short, a Europe that attaches great importance to the values, which result from the French revolution. A Europe that knows how to ensure these values without giving up its diversity and its future.” Few will disagree with this, Eurosceptics included. The problem is that it sounds marvellous phrased in these terms but the operationalisation in practice is severely lacking. A Europe that attaches great importance to the value of democracy is not what we are currently living in. Transparency in decision-making and freedom of information are key elements in the democratisation process of the EU. Without an informed citizenry no real accountability is possible. Yet what is presently happening is that the Member States acting together in the Council as well as the Commission (and even in certain respects the European Parliament) seem almost to be conspiring together to ensure that the gradual and hotly contested steps towards achieving more openness in decision-making processes at the EU level are stopped in their tracks and in some respects reversed.

Faltering transparency

Over the course of the past five or so years, many EU institutions and organs have themselves adopted on a voluntary basis self-regulatory measures granting citizens access to their documents. Moreover the Court of Justice in Luxembourg has laid down some general principles in case law. However it was the Treaty of Amsterdam which explicitly gave the citizens’ right to access to documents a fundamental treaty status. It also required that secondary legislation (Euro-Freedom of Information Act, FOIA) had to be adopted by May 2001. That has now been done but the results are very disappointing indeed.

The previous EU rules gave access to all categories of documents produced by the institutions in question, subject to a limited number of exemptions. The Commission drew up a draft Euro-FOIA last year which excluded a very substantial category of documents from its scope on the ground that the institutions needed an (unlimited) space to think. Excluded were “texts for internal use such as discussion documents, opinions of departments and informal messages”. Such excessive defensiveness has been the subject of quite extensive criticism. Also it is quite extraordinary that the Commission in its proposed new directive on public access to environmental information includes such internal documents within the scope of access of the directive only enabling Member States to refuse access where they can show that a specific exemption applies, subject to an overall public interest test. This much more restrictive and narrowly tailored approach to Member States environmental information stands in sharp contrast to the Commissions approach to its own internal documents.

The Commissions draft Euro-FOIA subsequently went into the so-called co-decision procedure, involving joint adoption by the European Parliament and the Council. While this process was ongoing the Council explicitly challenged the Parliament’s role in the EU legislative process by unilaterally amending its own decision on access to its documents. This can be described as an act of bad faith by the Council given that the Euro-FOIA would replace this internal decision as soon as it is adopted. In other words the Council tried to force by the backdoor the content of the Euro-FOIA. And it succeeded very well in this attempt given that virtually the same provisions were included in the FOIA that was finally adopted. It can however be argued that the provisions of the Treaty of Amsterdam create a standstill obligation for the Community institutions as regards access to documents. In other words the institutions are obliged not to act in a manner which makes access to documents more difficult than before the entry into force of the Treaty of Amsterdam. Instead what happened is that all the institutional actors involved (the Commission, the Council and the European Parliament) attacked what had already been achieved.

"Solana's military coup"

The Council decision in question was adopted on 14 August 2000 while the European Parliament, its legislative partner, was in recess. National parliaments and civil society were also not informed. Some of the press dubbed this incident "Solana’s military coup". Mr. Solana, ex-Secretary General of NATO, is Secretary-General of the European Union and High Representative for Common Foreign and Security Policy. As well as that, he is Secretary-General of the Western European Union (WEU). The amendment he prepared severely restricted public access to "all documents classified as top secret, secret and confidential in the fields of foreign policy, military and non-military crisis management". It did so by excluding such documents from the scope of access entirely.

The Dutch decision to challenge the legality of the Council’s Solana decision before the Court of Justice in Luxembourg was greeted with surprise by some of the other Member States. But the Netherlands has also strong allies on the matter. Sweden and Finland supported the Netherlands in its case and the European Parliament has too. Though this firm stance in favour of more openness is very welcome it must be recalled  that it will raise the rather technical legal question of the validity of the legal basis employed in the light of the changed legal context of the Treaty of Amsterdam. In any event the challenge is now redundant since once the Euro-FOIA was adopted in May 2001, the Netherlands immediately withdrew its case. One can only suppose that this withdrawal was part of the overall legislative "deal" among the members of the Council and the European Parliament.

Sensitive security information is protected by every administration. There is nothing extraordinary or undesirable about that. That aim could have been achieved by the exemptions included in the existing rules on access. What is undesirable and is explicitly contrary to the existing case law of the Court of Justice is to exempt broad categories of documents without subjecting individual documents to explicit scrutiny as to the applicability or otherwise of one of the grounds of exception (protecting justified interests such as privacy, defence, etc). Moreover the case law requires institutions to grant partial access to documents where non confidential information is included and to respect general principles such as the principle of proportionality. This component of the status quo was simply ignored.

"Sensitive documents"

There are a few other aspects which are worrisome. First, the definition of "sensitive documents" that was finally included in the Euro-FOIA is actually much broader than the original (Solana) exemption of foreign and defence matters and "non-military crisis management". The version which has now become law embraces classified documents which arguably extends to all areas of EU activity including justice and home affairs, trade and aid. This would exclude, for example, access to all documents relating to the new EU rapid-reaction paramilitary police force, even with regard to policy-making matters. Second, the inclusion of such "secrecy" provisions in what was meant to be the fundamental law regulating freedom of information allows international organisations such as NATO and third countries such as the US to veto a citizens access to documents if the documents have been drawn up in conjunction with them. For all the sweet rhetoric of the EU on the need for greater transparency only the Netherlands, Sweden, Denmark and Finland voted against adoption of the Council’s Solana decision and all of these ultimately voted in favour of the Euro-FOIA as it was ultimately adopted!

But it is with regard to the legislative process that the most problems arise from the perspective of transparency and openness vis a vis Europe’s citizens. Not only did the Commission fail to engage in a serious and open public debate prior to the adoption of its draft law ("regulation")  by immediately coming with a specific proposal without producing either a Green or White paper in advance, but the actual decision-making process on the substance of the Euro-FOIA took place behind closed doors. Early on in the process the two largest parties in the European Parliament (PPE and PSE) effectively mounted an alliance on the subject and came up with agreed draft reports on the subject before the relevant parliamentary committee, the Committee on Institutional Affairs. This was the followed by so-called "trialogue meetings" with representatives of the Commission, the Council and the European Parliament meeting behind closed doors in an attempt to thrash out an agreed joint text. After five months of "negotiation" by the three affected institutions (the scope of the law only extended to documents of the European Parliament, the Council and the Commission) the Council and the European parliament were able to present an identical agreed text respectively to COREPER and to the EP Committee on Institutional Affairs. In COREPER the text was such that even those Member States most opposed to openness (for example, Germany, France and Spain) were able to agree to it (only a qualified majority vote was technically required and this was subsequently rubber-stamped, without discussion by the Youth Council. In the EP Committee meeting no substantive discussion whatsoever took place and the agreed text was approved in plenary session on first reading by an overwhelming majority.

No open debate

It followed that at no stage did a full, open debate take place in the European parliament on the various substantive and highly controversial issues proposed. Not only is the actual decision-making process highly inappropriate given the nature of the topic under discussion (citizen access and openness) but it also substantially weakens the nature and purpose of the co-decision procedure as such and the European Parliaments function in that respect. The legislative procedure must be permitted to run its full course, where appropriate, and not be denatured by an essentially intergovernmental approach to resolving differences of view.

It is in this troubled perspective that Europe’s leaders need to ensure that their grandiose plans on Europe’s future turn out not to have feet of clay. Their own credibility vis a vis the citizens of the EU are at stake. They need to first take the issue of more transparency and openness seriously. This means ensuring that the European Freedom of Information Act builds on what has already been achieved both at the EU level itself as well as at the national constitutional level. The aim of formulating such rules at the EU level can never be to deprive Europe’s citizens of rights which they have already acquired either at the European level or at the national level. The forces for secrecy cannot be allowed to argue that the EU institutions need a virtually unlimited space to think: these institutions do not operate as islands where fortifications need to be firmly secured around them. Rather these institutions and organs operate within a democratic culture and are subject to its restraints. Moreover at the very time when the EU has just adopted an EU Charter of Fundamental Rights enshrining both the right to information, to access to documents and to good administration, it must be ensured by all the various actors that the fundamental status of such rights is taken seriously in practice, in deeds as well as words. The EU and its leaders must learn to take the feeling of disaffection and disenfranchisement among its peoples seriously (and the results of the Irish referendum on the Treaty of Nice is but the latest example in that regard) and to start the process of constructing a genuinely democratic European Union pas par pas.

Deirdre Curtin is Professor of the Law of International Organisations, University of Utrecht, and member of the Standing Committee of Experts on International Immigration, Refugee and Criminal Law, Utrecht.


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