Transparency – Still An Uphill Battle In The EU

Better access for the European Parliament to classified documents will be realised by an inter-institutional agreement passed nearly unanimously by the members of the European Parliament last week at their recent Strasbourg session.

The agreement between Parliament and European Council “concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy (2012/2069(ACI))” will allow members to get easier access to “limited” and “confidential” documents – which they can now even receive without security clearance – and also clearly regulates access to items labelled “secret” and “top secret”.

The step was important to allow the Parliament to fulfil its role as co-regulator according to the Lisbon Treaty, lead rapporteur, Gerald Haefner (Green Party), said. He pointed to the Anti-Counterfeiting Trade Agreement (ACTA) as a notable example where the Parliament had been asked to decide despite not having full access to all documents related to the negotiations. Haefner also said Council could just make access more complicated by elevating the status of documents from limited or confidential to secret.

Dutch Liberal MEP Sophie In’t Veld, who has asked for general public access to documents on many occasions on issues including ACTA, but also the secret US-EU negotiations of the Terrorist Finance Tracking Program (TFTP) activity reports of Europol, warns that Commission and Council routinely had been classifying documents as confidential or secret, invoking exceptions to the transparency rules, in particular in case of international agreements. In’t Veld won a judgment in May from the Fifth Chamber of the European General Court in Luxembourg annulling a Council Decision to withhold access to a TFTP negotiation-related document, asking the Council to give broader, even if not complete access.

While the Council has appealed this decision, she also has filed a complaint with regard to public access to ACTA documents. The first hearing will take place on 10 October, In’t Veld told Intellectual Property Watch. Because In’t Veld has filed this complaint as a private person, Parliament still has to decide whether or not to intervene on this case. A respective vote in the Parliament’s legal committee this week has been postponed

“I have made two further requests for access to documents: one to obtain the report on the implementation of the EU-US ‘SWIFT’ agreement, and one to obtain all documents relating to the negotiations with the US on FATCA (Foreign Account Tax Compliance Act),” In’t Veld reported.

How far the European Union is still away from real transparency for its citizens is well illustrated by the fact that the negotiations have broken down between the Parliament, Commission and Council on the review of an existing regulation (1049/2001) on public access to documents. Observers from organisations like Statewatch warned that most recent proposals from Council in the review process would lead to less rather than more access.

Sophie In’t Veld’s most recent call for better transparency is here.

Sophie In’t Veld court judgment on TFTP/SWIFT is here.

Statewatch analysis of review of regulation 1049/2001 is here.