FECL 44 (June 1996):

TRANSPARENCY IN THE EU: THEORY AND PRACTICE

Time and again the Council and the Commission of the EU, as well as member state governments, have solemnly emphasised the EU's commitment to open government and public access to information. In practice, however, secrecy prevails. After the Guardian and the Journalisten cases (see FECL No.41: "SWEDISH JOURNALISTS CHALLENGE EU-COUNCIL ON SECRECY"; No.38: "FREEDOM OF INFORMATION: 'GUARDIAN' WINS CASE AGAINST EU-COUNCIL"; No.24: "The EU's code on public access to information: Transparency they say, secrecy they mean"), the most recent decision of EU bodies to refuse the disclosure of a number of JHA Council documents to the British journalist and editor of Statewatch, Tony Bunyan, does not indicate a policy change.

On 11 June, member states voted by eight votes to seven, both in COREPER (Permanent Committee of Representatives and the Council of Justice and Home Affairs (JHA) ministers, to refuse access to nine sets of minutes of the K4 Committee - the committee of senior officials which coordinates EU policy on policing, immigration/asylum and legal cooperation.

A "fair solution"

The (slim) majority of member states considered Mr Bunyan's request a "repeat application" allowing the Council to arbitrarily decide to disclose only five of a total of 14 documents.

Article 3.2 of the "Code of Conduct" on public access to information says: "The relevant departments of the General Secretariat shall endeavour to find a fair solution to deal with repeat applications and/or those which relate to very large documents". Apparently, a "fair solution" according to the Council is to decide arbitrarily what to send to an applicant. This is all the more true now that "repeat application" also means "similar". Indeed, Mr Bunyan never made repeat applications for the same document, but merely applied for access to different sets of documents at repeated occasions. This professional curiosity was too much for the Council.

The seven governments voting in favour of greater openness were: Denmark, Ireland, Greece, The Netherlands, Finland, Sweden and - somewhat unexpectedly - Great Britain. In addition, Denmark, Sweden and Finland issued declarations saying all the documents requested by Bunyan should have been disclosed.

"A democratic right that should not be used too often"

For their part, France and Belgium issued an astonishing declaration, attacking Mr Bunyan's right to request access to Council documents. It said they considered that "Mr Bunyan's applications ... are contrary to the spirit of the 1993 decision [the "Code of Conduct"] and that they abuse the good faith of the Council in its willingness to be transparent". Commenting on the declaration, Mr Bunyan said the right of access to Council documents was "apparently a democratic right which should not be used too often and certainly not regularly".

The champions of secrecy

The governments which have constantly voted against Mr Bunyan's requests for documents are Germany, France, Belgium, Luxembourg, Spain and Austria. The three Nordic EU-member states have taken the lead in calling for more openness.