Wednesday 24 March 2010

Commission complains about leaked documents to Council: In vain

It's obvious that institutions don't like leaked document because the public could get to know what these institutions are actually doing its name.

To quote from the partially public outcomes of proceedings of the EU Council's Trade Policy Committee (19 February 2010; page 6):
"The Commission informed the Committee about two leaked documents, one RESTREINT UE and the other LIMITED. The Commission stressed the need to keep the confidentiality of such sensitive documents."
Which reminds me of the fact that La Quadrature yesterday leaked the full ACTA text with negotiation positions of the different sides (EU, USA, Australia, Japan) - and the water mark of the scanned document shows that it comes from the EU...

I suppose that the Commission's appeal in February was remained unheard.


martinned said...

I think it is important to distinguish two questions: Is it OK for documents marked RESTREINT, etc. to be leaked? And: Should the documents in question have been so marked in the first place?

Regarding the first question, I think we can all agree that Eurocrats should obey the command of art. 339 TFEU and maintain their professional secrecy.

Regarding the second, I think it is fair to keep documents regarding sensitive negotiations confidential. It is in nobody's interest if the EU's negotiating stance should become known to the other parties at the table. Whether that applies to these documents as well, I cannot say, not having read them.

BTW, a much more drastic analogy to this situation is the prosecution before the Yugoslavia Tribunal of one of their former staffers, last year, for leaking confidential documents. Then, too, I felt the prosecution was correct. If you don't agree with the decision to mark certain documents confidential, there are things you can do. As long as the documents continue to be so marked, the staffer has to maintain confidentiality.

Julien Frisch said...

Quasi-legislative (or quasi-pre-legislative) documents shouldn't be kept secret.

Negotiations that lead to new laws regulating the behaviour of us citizens have a legislative character and have to be public to be controllable by those for whom the democratic system is designed: us.

Public servants who have understood this are thus most welcome.

Which is no argumentation that any kind of document should be public or should be leaked. But that civil servants who are responsible serving the public should judge whether their duty to secrecy is more important than their duty to serve the democratic system.

martinned said...

Individual public servants should not be in the business of deciding whether they think a classified document should in fact be classified. If they think a document is classified when it should not be, they should take it up with the originator. (Cf. par 17 of the Commission Provisions on Security, for example.) Alternatively, the outsider who is interested can bring a case under the access to documents regulation, which includes the possibility of bringing in the Ombudsman or the ECJ.

If individual eurocrats start second guessing the classification decisions, disaster is bound to follow.

That said, I agree that the travaux preparatoires of legislation should normally be accessible to the public, certainly when we're talking about Council or Parliament documents. The only exception I'd consider is the desire to anonymise or otherwise protect the ability of the MS to make concessions without getting slaughtered in their national press.

Julien Frisch said...

I knew you'd be saying this and in principle I agree. But having worked within administrations I can just say that "discussing things with originator" is a very unlikely thing to happen.

Regarding the last point: For me, this is a dilemma that is hard to solve. But I'd rather hope that with more transparency national governments will learn to explain why they gave in on certain points, because they are finally accountable to their citizens who should be able to understand how and why their representatives are deciding the way the do.

martinned said...

Indeed, discussing things with the originator is a problem. In fact, I dug up the security rules hoping to find a more formal and accessible procedure for downgrading or completely declassifying documents. Maybe such a thing should exist. Either way, there is the procedure of the access to documents regulation, which does justice to the competing interests of transparency and confidentiality.

Rather than leaking classified documents, why not do the ethical thing and simply give journalists all the details on the document but not the document itself? That way, they can claim it through official channels. That's inevitably going to be slow(er), but at least it doesn't violate the Treaty or the confidentiality agreement all eurocrats have to sign.

As for transparency in negotiating: I am a big fan of the "Danish system", with strict negotiating mandates. I think that's a much more sensible way to fix the democratic deficit than people give it credit for.

That said, people don't like it when their government makes concessions in negotiations, not even when you explain it to them.

Negotiating the way that they do helps the Danish get what they want, since (from a game theory perspective) they have a credible commitment that they won't give in any more than what's in their mandate, come hell or high water. However, if all MS worked that way, nothing would ever get done.