EU parliamentarians are asking for more transparency for themselves, but less so for ordinary citizens, adding complexity to an already complicated issue.
A gap is widening between what might be disclosed to the public in general and what elected representatives — or some of them — would have access to, as EU politicians ask for privileged access to classified documents. Starting on 3 October, members of the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) took a new round on a more than three-year-old proposal: the Commission's suggestion for a recast of the present regulation on access to documents. The Committee was expected to vote on different amendments in November, leading to a final vote in plenary in December. This exercise is being done for two reasons.
- The present regulation, dated 2001, has a sunset clause written into it and should have been recast since 2004, but this process has been postponed for years.
- The Lisbon Treaty, in force since 1 December 2009, gives an enforced legal base for transparency in three ways: the Charter of Fundamental Rights is to be regarded as legally binding and has a specific article (no. 42) on the right of access to documents; the Lisbon Treaty (Articles 9–12) emphasises citizens' rights to take part in a participatory democracy; and Article 15.3 on access to documents extends this right to all EU institutions. Furthermore, there are no specified exemptions in that article, whereas the former treaty made an exemption for "the effectiveness of its decision-making process" (the Nice Treaty, Article 207.3).
These are good reasons for a recast of the present rules that opens up for more transparency, according to a broad but somewhat vague majority in the European Parliament.
The now former Finnish MEP Heidi Hautala, for the Greens, in June tabled a report along these lines suggesting several improvements to transparency. The report was adopted by LIBE with an overwhelming majority. (Ms Hautala was since appointed a minister in the Finnish government.) But there are forces pushing in the opposite direction. The Commission's proposal for a recast of the existing rules, from 2008, puts new and severe limitations on the right of access. And the Council, representing the governments of the member states, has so far shown very limited interest in improving transparency at all. In a move to break this deadlock, the Commission in March proposed a short and quick change to the present rules by adding three minor references to the Lisbon Treaty, bringing the rules up to date while the discussion of a major recast lingers on. On top of this, parliamentarians advocate a classification system written into the access rules, and granting wider access for politicians than for citizens in general.
Classification written into the rules
Michael Cashman, MEP for the Socialists & Democrats and main rapporteur in the European Parliament on access to documents, advocates that a new regulation should comprise the same procedure for classification as already exists within the Council. This is a classification system which in future will expand to the member states as well, following an agreement signed by the 27 EU ambassadors in May 2011. The Bureau of the European Parliament adopted very similar rules for its internal procedure shortly afterwards. Michael Cashman's proposal is, in this respect, not new in substance, but it introduces for the first time rules of classification in a legal text aiming to promote transparency. This adds a few complications.
- Member states in the EU question whether the EU as such has legal grounds to adopt classification rules. (This is one reason for adopting the intergovernmental agreement — and not EU legislation — on how to handle sensitive documents.)
- By accepting the Council's four levels of classification, the Parliament would actually lower the ceiling. The present access regulation mentions only three levels of classification as grounds for not disclosing documents (Article 9). There is at present no reference to the level (Restreint/Restricted) for information that could be "disadvantageous" to the EU or a member state if disclosed.
- Several parts of Michael Cashman's proposal suggest that MEPs should have broader access to documents than citizens in general (see amendment 24 on article 2.2, and amendment 27 on article 3.3).
These factors point towards a growing internal fight over competences between the EU institutions, as well as a battle over the rights of citizens.
Asked how he justifies a classification that would prohibit disclosure of information on the sole ground of being "disadvantageous" to the EU, Mr Cashman replies in an email: "My intention is to deal with common rules for the institutions on classification of documents. I am therefore replicating what is already existing in the internal security rules of the Council." Judith Sargentini, Dutch MEP and successor to Heidi Hautala as rapporteur for the Greens, has a similar view: "In a consensus world there are some things we will have to swallow. The Parliament doesn't like it when the Council closes documents, as in the ACTA case," she says. Neither of the two central EU politicians had been informed about the adoption of the new internal classification rules in the Parliament. "I was not informed, but I was aware of it. It is a welcome move from the EP, but we need to work towards common rules of classification between the institutions," Michael Cashman comments.
Ágnes Hankiss, Hungarian MEP for the centre-right EPP group (Christian Democrats) and rapporteur on behalf of the Petitions Committee, is also in favour of common classification rules. But in her report from the previous year she does not introduce the lowest level, Restreint/Restricted, as grounds for exemption from disclosure. The EPP approach is, in this respect, more pro-transparency than that taken by the Socialists & Democrats' Michael Cashman. The same view can perhaps also be attributed to Finnish MEP Anneli Jääteenmäki, Liberal (ALDE) and rapporteur on behalf of the Committee on Constitutional Affairs (AFCO). Ms Jääteenmäki mentioned classification neither in her report from the previous year nor in a second, shortened report adopted by the AFCO on 11 October 2011.
The positions, summarised
To summarise the different, and not entirely clear-cut, positions: the Council has, since 2001, not moved very much at all, at least not in the direction of improved transparency. The recent Access-Info case signals a transparency fatigue much more than an enthusiasm for openness among EU governments. The Commission has delivered two proposals for new rules: the broad and heavily criticised recast tabled in 2008, and a small proposal for a "Lisbonisation" of the present rules tabled in March 2011. The Parliament criticises the Commission, asks for improved transparency, and at the same time advocates an even more fine-grained mesh aimed at catching documents not suited to be seen by citizens but available to their elected representatives. After the inactive Hungarian and Polish presidencies on this matter, the upcoming Danish presidency has a full plate on its table.