FECL 08 (September 1992):
Last spring the European Commission prepared a proposal to introduce an Official Secrecy Law in the EC. Under this new regulation officials of the Commission in Brussels and their counterparts in the 12 member states will be able to classify documents about Community proposals and policies.
This proposal has come under strong attack from several quarters. At their last meeting in Montreal in June the International Federation of Journalists adopted a motion initiated by Dutch and Danish members to express its anxiety. The federation fears that the new act will jeopardize initiatives for the creation of a European Act for the Freedom of Information.
We publish this comment of the proposal by Eveline Lubbers (Amsterdam), followed by a briefing about official secrets policies in the UK, by Jolyon Jenkins (London).
The proposal to introduce a UK-style official secrets regulation is a result of the Maastricht Agreement.
The version discussed by the European Parliament this summer is formulated in extremely elastic terms. 'Classified information' is taken to mean "all forms of information whose unauthorized disclosure could be detrimental to the essential interests of the European Communities and of the Member States". The terms 'detrimental' and 'essential interests are not defined. On the other hand the term 'information' expressly includes all imaginable forms of communication in a time of rapid technical progress.
This makes the proposal a blanket provision which can be applied to any area of EC policy.
There are no restrictions defined as to limit the areas of application. On the contrary, the provisions apply to "sensitive information connected with EEC or Euratom activities" both inside the Member States and institutions, as well as with regard to mutual information among the Member states.
Anticipating unification, Europe is increasingly acting like an independent state. The Community deals with matters of defence (the German-French forces), foreign affairs (sanctions against the Serbs), migration and asylum policies. The harmonization of police- and judiciary policies, secretly prepared by the Schengen and TREVI groups, will also become an EC matter in the wake of Maastricht.
The now proposed Act will provide the possibility to avoid publicity for decisions already taken outside any democratic consultation or control.
With the EC beginning to adopt a state-like behaviour, it becomes ever more important to keep an eye on the democratic level of the Community.
The introduction of a European Secrecy Act is likely to conflict with the practice of Member States with a more liberal legislation. The consequences for the long term are difficult to foresee. The proposal begs the question of different national laws on confidentiality. European civil servants will remain under EC jurisdiction. But as long as the Member States are free to implement the provisions of the secrecy act as they wish, this is likely to lead to strange situations. Disclosing European secrets in the United Kingdom for instance could be punished with serious penalties, whereas in the Netherlands the same disclosure would have no consequences at all. To end such an inequality of law there is a need to a standard European approach.
The regulation has force of law and can be implemented directly, without consultation of the various parliaments, even when it conflicts with national constitutions.
Another item left to the creativity of the various Member States is the vetting or "screening" of those who have access to classified information. Each country will be able to apply its own practice and procedures in carrying out the vetting and there are no provisions neither for the individual subjected to vetting to be told of its findings nor any rights of appeal.
An explanatory memorandum circulated to MP's by the Foreign Office says the UK is not in favor of the proposal as drafted. The government's objection to the proposal is not one of principle. Instead, the UK government would prefer measures that do not require new legislation and calls for procedures to ensure an "agreed standard of protection" to sensitive EC-documents in the interest of what it calls the "free flow of information between EC institutions and other Member States".
The nub of the UK government's argument is that "it remains an open question whether a Council regulation is the best means of implementing such procedures".
This suggests that they would favour an inter-governmental agreement which would not be subject to scrutiny by the European Parliament.
The first to mention the regulation, thanks to the revelation of the UK based publication "Statewatch", was the Dutch Human Rights Magazine MRM. The July issue revealed internal correspondence on the Euro-secrecy act between the Minister of Home Affairs and the State Secretary of Foreign Affairs. The Minister appears to be aware of the legal shortcomings of the proposal and is concerned about the illdefined concepts and the risks of expanding security measures. Nevertheless she says that anyone leaking confidential information is endangering the rules of democracy and is "driven by nothing than self-interest".
Although the Dutch Federation of Journalists reacted with alarm to the MRM article and tried to raise public interest for the proposal, the issue has hardly been covered by the media so far. The Dutch representative in the European Committee for Legal Affairs, the Christian Democrat Jansen van Raaij claims the aim of the proposal is in fact to maximize the information facilities of citizens. He said however, that critics were welcome to send concretely formulated amendment proposals concerning specific provisions of EC-secrecy draft.
The Legal Affairs Committee of the European Parliament showed some astonishment that the proposal had not been sent to the Parliament under the usual "consultation" procedure, but under the "cooperation" procedure instead, which only allows the Parliament one chance to comment (instead of two) and that other parliamentary committees affected by the issue were not informed.
At its meeting on June 23 the Legal Affairs Committeee therefore agreed:
This delay offers the time and space required to start a campaign against the proposal in as many Member States as possible.
Parliaments and journalists, maybe even unions, have to be made aware of the far reaching consequences of the proposal.
The proposal, 9 pages, can be requested at the European Commission Information Office in every Member State. Official title: Proposal for a Council Regulation (EEC) on the security measures applicable to classified information produced or transmitted in connection with EEC or Euratom activities. (92/C 72/16) - COM (92) 56 final. Submitted by the Commission on 26 February 1992. Dated 21 March 1992.
Eveline Lubbers
Sources: Statewatch (PO Box 1516, London N16 0EW) No.3 & 4 1992; MRM (Mensenrechten Magazine, Postbus 17157, 1001 JD Amsterdam. For further information: Eveline Lubbers, Buro Jansen & Janssen, Postbus 10591, NL-1001 EN Amsterdam.