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16th Apr 2024

Officials, diplomats want even more EU secrecy

  • 'You basically have three to five EU countries on one side [pro-transparency] and everybody else on the other side' (Photo: ec.europa.eu)

Most member states and EU institutions are keen to draw a new veil of secrecy over how they appoint top officials and enforce EU law.

The rights of journalists, NGOs and average people to get access to internal EU documents is currently governed by a regulation from 2001.

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It is already hard to gain access because there is no clear registry of what documents are about and because it can take long legal battles to make institutions drop their objections - for instance, on grounds that it would violate people's privacy, threaten national security or that there is no "overriding public interest" to publish sensitive information.

The Danish EU presidency will on Friday (13 April) hold talks with fellow member states on a new version of the rules.

But an internal note drafted by the EU Council on 30 March and leaked by London-based NGO ClientEarth indicates that access is about to get even harder.

The six-page-long note says that several member states want a new definition of what constitutes an "EU document" to exclude vast swathes of material - such as informal emails - from access.

The EU Council, the European Commission and most countries are also keen to exclude documents relating to appointments of top officials and judges and to introduce "special protection" for papers on competition cases, EU court proceedings, infringement proceedings and legal advice given by EU institutions to their own policymakers.

A Danish diplomat told EUobserver the presidency will propose excluding material which fails to meet "pre-document" criteria - such as an email drafted by an EU official which reflects his private views, but has not been endorsed as policy.

The contact noted that EU case law - such as the so-called Turco ruling in 2008, which called for greater access to EU institutions' legal opinions - could be written into the new regulation to offset "special protection" for the competition, infringement and legal documents.

The Danish source noted that this is the "make-or-break" or "most difficult" issue in the talks, however.

"There are strong views that making the legal opinions open to public scrutiny would mean they are less robust in the first place ... there is no easy answer to this," the source said.

The pro-secrecy trend comes at a time when EU bodies are getting important new powers on oversight of national budgets.

For her part, Anais Berthier, a ClientEarth lawyer, said it also goes against the Lisbon Treaty, which declares in its opening words it wants "an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible."

"Confidentiality creates suspicion - if the process was more transparent, it would make the decisions more legitimate and people would adhere more closely to the Union. But the council and the commission clearly want the least possible public participation," she noted.

On infringement procedures - in which the commission can fine member states for not complying with EU laws - EU spokesmen give snippets of information in press briefings.

But Berthier said unless documents are made public while the procedure is ongoing, people cannot understand what their government is really accused of doing wrong and civil society cannot monitor if EU officials are really enforcing laws or just cutting deals for everybody to save face.

On the issue of behind-closed-doors appointments, she noted that EU bodies have a bad track record - in one recent example, it took a series of leaks and investigative reports to expose that the EU food safety agency in Italy is being run by food industry lobbyists.

ClientEarth's views were endorsed by more than 80 other NGOs in an open letter to EU institutions on 10 April.

But another Danish presidency contact indicated they are fighting a losing battle. "Looking at past discussions, you basically have three to five EU delegations on one side [pro-transparency] and everybody else on the other side," he said.

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EU member states are set to launch an appeal of a lower court decision with the European Court of Justice hoping to prevent greater transparency in decision-making - even about transparency rules themselves.

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The EU commission and national governments are seeking to tighten rules granting access to their internal documents despite a ruling by the European Court of Justice calling on them to release legal opinions drafted by the EU Council’s legal service.

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