The 27 EU ambassadors in Brussels agreed to make internal security rules for information binding law in the member countries, and the 15 most senior members of the European Parliament decided on similar rules. Under both, information judged "disadvantageous" to the EU would not be disclosed to the public.
A binding classification regime
The public's right to know had been an ongoing battle in the EU for almost two decades, with conflicting interests between member states, civil society, the EU bureaucracy and the European Parliament. At the same time, another game was played behind the scenes. Without much attention, the 27 EU ambassadors in Brussels signed an agreement to ensure that the agreed classification rules would be respected in the member countries. What had been the internal security rules for the Council as an EU institution would also apply to authorities in the member states.
Such sensitive documents were to be marked top secret, secret, confidential or restricted. The lowest classification, "restricted", was to apply to information whose disclosure could be "disadvantageous to the interests of the European Union or of one or more of the Member States." In the existing EU rules for public access to documents there was no such classification: the exceptions for sensitive documents from the general presumption of access (Article 9) stopped after Top Secret, Secret and Confidential.
The decision, sealed on 4 May, was an "inter-governmental agreement", meaning it had to be ratified by all member countries before it could enter into force — in some countries by the national parliament. Its inter-governmental nature also meant it was not "EU law" and did not bind other institutions such as the Parliament. One might have anticipated an uproar from the elected EU politicians, who had no influence on the agreement, yet none was seen or heard. One reason could be that MEPs had not been involved, or even told; another that the Parliament had moved in the same direction, its leading administrative body, the Bureau, having recently taken a very similar decision.
The Parliament follows suit
On 6 June the Bureau decided on new rules governing the treatment of confidential information in the Parliament itself. The Bureau consisted of President Jerzy Buzek and the 14 Vice-Presidents, representing six of the seven political groups in Parliament. The decision had been in force since 1 July and operated with the same four categories of classification as the Council agreement between the member states. It also covered other aspects, such as rules for secure reading rooms where classified information could be read by persons permitted to do so, and rules for the security clearance of members of the Parliament. No member was to have access to secret or top secret information without a security screening from his or her national security authority; for confidential and restricted information, it was enough for MEPs to sign a "solemn declaration" that they would not disclose the content.
Diana Wallis, a Member of the Parliament for the Liberal Democrats (UK) and a member of the Bureau, said the decision came naturally and followed an updated inter-institutional agreement between the Parliament, the Council and the Commission — itself a result of the Lisbon treaty. She said a whole new system for handling Council documents was being built on the new framework agreement, and that the Council wanted assurance of a secure system with routines that met its demands. Asked how this corresponded with the demands for transparency and new access rules, she said these were different issues: the regulation of public access was based on the principle of everything being open, but a proper security system was necessary in order to receive classified information — a point that applied mostly to the foreign-affairs committee, though it could equally concern the trade committee.
Echoes of the "Solana coup"
The EU system had once before been the target of a sudden decision on the classification of documents taken by diplomats. In 2000 the EU ambassadors unannounced adopted new rules on classification put forward by Javier Solana, then Secretary-General of the Council and High Representative for foreign affairs and security policy. That decision, dubbed the "Solana coup" by critics, introduced specified classifications for information concerning foreign policy, security and defence. Four of the then 15 member countries — Denmark, the Netherlands, Finland and Sweden — objected to this automatic exclusion of categories from the general rule of access, which at the time was laid down in a "Code of conduct". The new agreement re-introduced a somewhat similar conflict, between the need for common security rules on the one hand and very different perceptions and traditions of access to information on the other.
National laws and the balancing act
To some member countries it was important to state that their national laws on transparency remained untouched; in Sweden the right of access is written into the constitution. This appeared in the agreement, at Article 3.2: "Nothing in this Agreement shall cause prejudice to the national laws and regulations of the Parties regarding public access to documents, the protection of personal data or the protection of classified information." At the same time, Article 3.1 stated that "The Parties shall take all appropriate measures in accordance with their respective national laws and regulations to ensure that the level of protection afforded to classified information subject to this Agreement is equivalent to that afforded by the security rules of the Council of the European Union." How this could be reconciled remained to be seen.
Berndt Fredriksson, an expert on archives and security rules at the Swedish foreign ministry who had followed the negotiations closely, reflected on the conflict: "These are necessary security rules where member countries have agreed on common goals, but have a freedom of methods when it comes to how the goals can be reached. It is of course in everyone's interest that the security is kept. No chain is stronger than its weakest link. Sweden can't deviate from, or rebel against, the other countries." Diana Wallis argued along similar lines. Asked whether "disadvantageous to the Union" was not a fairly vague ground for secrecy, she said it was clearly a balancing act of different interests and that the Parliament wanted to be as trusted as other parties. Asked whether the change had been debated in any committee or party group, she said it had been debated in the Bureau; asked whether anyone had opposed the decision, she said not that she recalled. Related coverage of persistent EU secrecy is set out in how the Council classified its response to a transparency ruling.
Frequently asked questions
What did the member states agree on 4 May?
An inter-governmental agreement making the Council's classification rules binding on national authorities, with four levels — top secret, secret, confidential and restricted — the lowest covering information whose disclosure could be "disadvantageous" to the EU or a member state.
How did the European Parliament respond?
On 6 June its Bureau adopted rules on confidential information using the same four categories, in force from 1 July, including secure reading rooms and security clearance for members before access to the most sensitive material.
Why did some countries stress that national laws were untouched?
Countries such as Sweden, where the right of access is constitutional, secured a clause (Article 3.2) that the agreement would not prejudice national public-access laws, even as Article 3.1 required protection equivalent to the Council's. For background on using such laws, see how to use European freedom-of-information laws.