EU-parliamentarians ask for more transparency for themselves, but less so for ordinary citizens. This adds complexity to an already complicated issue. New readers can start here.

A gap is widening between what might be disclosed to the public in general, and what the elected representatives – or some of them – would have access to, as EU-politicians ask for privileged access to classified documents.
Starting 3 October members of the European Parliaments Committee on Civil Liberties, Justice and Home Affairs (LIBE) took a new round on a more than three-year-old proposal; the Commissions suggestion for a recast of the present regulation on access to documents.
The Committee is expected to vote for different amendments in November, leading to a final vote in plenary in December.
This exercise is done for two reasons.

* The present regulation dated 2001 has a sunset clause written in to it and should have been recast since 2004 but this process has been postponed for years.
* The Lisbon Treaty in force since 1 December 2009 gives an enforced legal base for transparency in three ways:
– The Charter of fundamental rights shall be regarded as legally binding and has a specific article (no.42) about rights of access to documents.
– The Lisbon Treaty (Articles 9-12) emphasizes citizen’s rights to take part in a participatory democracy.
– Article 15.3 on access to documents extends this right to all EU-institutions. Further more there are no specified exemptions in this article, whereas the former treaty made an exemption for ”the effectiveness of its decision-making process” (The Nice Treaty, Article 207.3).

These are good reasons for a recast of the present rules opening up for more transparency, according to a broad but somewhat vague majority in the European Parliament.

The now former Finnish MEP Heidi Hautala for the Greens in June tabled a report along these lines suggesting several improvements of transparency  – see Documents. The report was adopted by the LIBE with an overwhelming majority. (Ms Hautala was since appointed minister in the Finnish government.)
But there are forces pushing in the opposite direction.
The Commission’s proposal of a recast of the existing rules from 2008 puts new and severe limitations to the right to access. And the Council (representing the governments of the member states) has so far shown a very limited interest in improving transparency at all.
In a move to break this deadlock the Commission in March proposed a short and quick change of the present rules by adding three minor references to the Lisbon Treaty, making the rules up to date while the discussion of a major recast lingers on.
On top of this parliamentarians advocate a classification system written in to the access-rules, and to grant wider access for politicians than for citizens in general.

Michael Cashman MEP for the Socialists & Democrats and main rapporteur in the European Parliament on access to documents advocates that a new regulation should comprise the same procedure for classification as already exists within the Council.
This is a classification system which in the future will expand to the Member States as well, following an agreement signed by the 27 EU-ambassadors in May 2011 as reported by this website.
The Bureau of the European Parliament adopted very similar rules for its internal procedure shortly afterwards.
Michael Cashman’s proposal is in this respect not new in substance, but introduces for the first time rules of classification in a legal text aiming to promote transparency - see Documents.
This adds a few complications.

* Member states in the EU questions whether the EU as such has legal ground to adopt classification rules. (This is one reason for adopting the intergovernmental agreement – and not a EU-legislation – on how to handle sensitive document.)
* By accepting the Councils four levels of classification the Parliament would actually lower the ceiling. The present access regulation only mentions three levels of classification as an excuse for not disclosing documents (Article 9). There is at present no reference to the level (Restreint/Restricted) for information that can be ”disadvantageous” to the EU or a member state if disclosed.
* Several parts of Michael Cashman’s proposal suggest that MEPs should have a broader access to documents than the citizens in general (see amendment 24 on article 2.2, and amendment 27 on article 3.3).
These factors points towards an augmenting internal fight of competences  between the EU-institutions, as well as a battle for the rights of the citizens.

Wobbing.eu has asked Michael Cashman how he justifies a classification that would prohibit disclosure of information on the sole ground of being ”disadvantageous” to the EU.
”My intention is to deal with common rules for the institutions on classification of documents. I am therefore replicating what is already existing in the internal security rules of the Council,” Mr Cashman replies in an email.
Judith Sargentini, Dutch MEP and successor of Heidi Hautala as rapporteur  for the Greens has a similar view.
”In a consensus world there are some things we will have to swallow. The Parliament doesn’t like when the Council close documents like in the ACTA-case I’ve seen on your website,” she says.
None of the two central EU-politicians was informed about the adoption of the new internal classification rules in the Parliament.
”I was not informed but I was aware of it. It is a welcome move from the EP but we need to work towards common rules of classification between the institutions”, Michael Cashman comments.

Ágnes Hankiss, Hungarian MEP for the centre-right EPP-group (Christian Democrats) and rapporteur on behalf of the Petition Committee is also in favour of common classification rules. But in her report from last year she does not introduce the lowest level Restreint/Restricted as an exemption for disclosure - see Documents. The EPP-approach is in this respect more pro-transparent than the approach taken by Socialist& Democrat’s Michael Cashman.
The same view can perhaps also be attributed to Finnish MEP Anneli Jääteenmäki, Liberal (ALDE) and rapporteur on behalf of the Committee for Constitutional Affaires (AFCO).
Ms Jäätenmäki did neither mention classification in her report from last year, nor in a second and shortened report adopted by the AFCO October 11, 2011 - see Documents.

To summarize the different, and not entirely clear-cut, positions:
The Council has since 2001 not moved very much at all, at least not in the direction of improved transparency. The recent case of Access-Info signals a transparency fatigue much more than an enthusiasm for openness amongst EU-governments.
The Commissions has delivered two proposals for new rules: the broad and heavily criticised recast tabled in 2008, and a small proposal for a ”Lisbonisation” of the present rules tabled in March 2011.
The Parliament criticises the Commission, asks for improved transparency, and at the same time advocates an even more fine-grained mesh aimed to catch documents not suited to be seen by citizens, but available to their elected representatives.
After the non-active Hungarian and Polish presidencies in this matter, the upcoming Danish presidency has got at full plate on its table.

Staffan Dahllöf