EU member states delay trilogue transparency

This Council document (item 5c) reads like EU member states want to delay increased transparency of EU law-making by trilogues*:

The Presidency informed delegations on the outcome of the General Affairs Council on transparency issues. … Regarding trilogues, the President indicated that discussions had shown the need to balance transparency with the efficiency of the decision-making process and that further discussions were needed.

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* Trialogues is EU language for: behind-closed-doors meetings of Parliament, Council and Commission to compromise on new EU laws before first reading without providing any public protocols.

COSI meeting on 25 June 2010

The EU Council Committee on Internal Security (COSI) will meet on Friday with this provisional agenda.

And the meeting documents are almost all secret: 9441/2/10, 8386/10, 11370/10, 10926/10, 10928/10. Only exception: this one.

EU, terror & restricted briefings

"We should also provide more detailed information to the European Parliament, for example through restricted briefings."

"At the moment we give the US data and get assessed intelligence in return."

"Improving the effectiveness of the EUPOL Mission in Afghanistan is a particular current priority where such an integrated approach could not only improve the operation of the Mission itself, but also the beneficial impact on the EU's own security. This positive impact on internal security will help justify devoting more resources from Interior Ministries."

"EU Counter-Terrorism Strategy - Discussion paper" by Gilles de Kerchove, EU Counter-Terrorism Co-ordinator [my highlights]

"Transparency and Democracy" (1994)

It is of the highest importance for the credibility of the European Union that its decision making process be as transparent as possible, especially in view of the difficulties of ensuring democratic control of this process, and of its remoteness from European citizens.

"Transparency and Democracy" (1994)

The EU's accession to the European Convention on Human Rights: Draft Council Decision

Well, I'd like to report the details of the

Draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)

but the Council has decided that this draft is not for the public, although the EU's accession to the ECHR is of constitutional importance for the Union (since it is prescribed by the EU Treaties) and although it is highly relevant for every EU citizen (since the ECHR guarantees individual rights and allows individual complaints).

But apparently the public is not supposed to know what the Council plans to decide and it prefers to discuss the rights of EU citizens behind closed doors.

The secret five - observations on the COSI meeting of 30 April 2010

COSI, the Standing Committee on operational cooperation on internal security, has met on 30 April to discuss issues like the protection of the EU's external borders or the cooperation between the internal security agencies of the EU.

What we see in the summary of discussions of the meeting is that the public is not trusted to know what the committee is working on in detail.

Take the summary of agenda item 5:

"The meeting reached consensus on the Presidency proposal (doc. 8852/10 COSI 24 ASIM 48 FRONT 57 COMIX 321) regarding the involvement of COSI in the implementation of 5 out of the 29 measures set out in the above-mentioned Council Conclusions. The COSI Support Group was invited to submit to the next COSI meeting concrete proposals for COSI's involvement in the identified measures and delegations were invited to indicate their willingness to participate in the elaboration and implementation of these proposals."

In this summary, we are directed to a non-public "Presidency proposal" (I've added the link) that seems to give guidance on how to deal with 29 measures proposed by the Council in February (see the Council conclusions).

But instead of telling us which are the 5 of the 29 measures to will be dealt with, COSI keeps it secret from us.

In other words: The ministers have agreed on a public list of 29 measures regarding FRONTEX, but the non-elected officials sitting in COSI keep secret from us what they are doing with these measures. Brilliant!

Access to Commission documents

This is just an example:

I was searching for the European Commission working document Sec(2010)426 in their document search and what I get are these results without any link to the actual document(s).

However, the document is accessible on Eur-Lex, in the Council register and even somewhere on the Commission website where it can be found via Google.

Why not making it public through the actual document search of the Commission if it is public anyway?

Legal Leaks & Access to public information in OSCE countries

The OSCE media freedom representative Dunja Mijatovic has announced the start of a new platform named "Legal Leaks" providing a toolkit for access to information held by public authorities in different European countries.

Who will be in the External Action Service?

Thanks to MEP Martin Ehrenhauser (independent), we now have access to a list of Commission & Council units that will be placed under the External Action Service of the EU as soon as it is functional.

Note: In the online registry of the Council, this document is not public. Why?

Quote of the day: ACTA & transparency

"Regarding the applicant's argument that essential parts of the positions of all ACTA participants have already been disclosed on the internet, it should be recalled that the fact that the documents in question are accessible on the internet does not constitute a sufficient ground to conclude that these documents were officially released by the Council."

Source: EU Council document 8072/10 (worth reading in its entirety)

Follow-up: Common Fisheries Policy & open data

This morning I published an excessively long article on the decision-making process leading to a Council Regulation regarding the supervision of the rules of the Common Fisheries Policy - and I want to show with the follow-up how one can use the documentation for further research.

You may still wonder what kind of value this research may have, especially if you are not into fisheries (which I am neither). Let me thus share just some insights that you can get just by comparing "dry" data such as Council documents.

In the initial draft of regulation 1224/2009, there was Article 9 para 5 on open access to fisheries data. The article reads:

Member States shall make detailed and aggregated data available to end-users as referred to in Article 2 (i) of Council Regulation (EC) No 199/2008 in order to support scientific analysis under the conditions laid down in Article 18 of that Regulation.

The regulation referenced in this article is on "the collection, management and use of data in the fisheries sector and support for scientific advice", and it was passed while the consultation on Regulation 1224/2009 was ongoing. Article 18 of Regulation 199/2008 states that open data is not only good for scientific advice but also for the public debate (see for example projects like Fishsubsidy.org which uses public data to support public supervision of EU fisheries).

However, Article 9(5) from the initial draft has disappeared in the final regulation, and so we wonder why.

Going back to the initial blog post I have written, we find document 10152/09 (20 May 2009) where on page 19 we read the following comments on Article 9(5) by three member states:

[Portugal]: why is reference to Data Collection needed?
[Spain]: this requirement already exists under Reg. 199/2008 and does not need to be repeated here.
[Greece]: not agree with transmitting detailed and aggregated data to end-users as under Reg. 199/08, since there is no connection with control of CFP rules.

In the case of Greece and Spain this reflects their written contributions filed before May (see links); in the Portuguese case I couldn't find it (but the secretariat noted it so it seemed to be an obvious position).

When you look into the internal negotiation document published the very same day as document 10152/09, on 20 May, you will notice that already in this version Article 9(5) has been erased.

This shows that three member states - Portugal, Spain, and Greece - were able to make an important paragraph in this regulation obsolete and apparently no other member state was ready to fight for open data in a Regulation that is meant to strengthen the supervision and control of EU fisheries.

This is just a quick example that I found by using a simple text comparison software and without the need for any technical knowledge on fisheries - so if you have such knowledge you can do much more!

Picture: © jfchenier / CC BY-NC 2.0

Common Fishery Policy, Data Blogging & Transparency in the EU Council - updated

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Update: See the visualisation of this blog post that I have done as a follow-up.

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This blog post is definitely among the most work-, research- and lern-intensive I have ever written, and I still feel I haven't done enough, even knowing that the article is way too long for a quick read.

It is inspired by the re:publica 10 conference and the different workshops on data journalism, on data visualisation (see my first experiments and the map at the end of this post) and on farm & fish subsidies as well as the permanent discussions about making politics and government more transparent.

As you may have read in a recent post on this blog, the EU is about to reform its Common Fisheries Policy. This is absolutely necessary seeing the overfishing of our seas and the severe attacks on many marine species by the industrial fishery. Not to talk about reports on illegal fishing by EU vessels.

Part of this larger reform process is the "Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy". This regulation inter alia deals with supervision and sanctions regarding fish quotas and other rules set in the Common Fisheries Policy.

(Update:) There is also a case in front of the European Court of Justice against the Council and this Regulation, as the the Council Legal Service informed on Friday, a fact I wasn't aware of when writing this post.

The Regulation has been passed last November after one year of discussions, and since most documents have been made public afterwards it is worthwhile looking at the discussion process more in detail.

Those of you who work with EU institutions know how painful it is to track EU policy developments. And most of you will agree that it is particularly difficult to track what is going on in the EU Council; even ex post it is almost impossible to follow in detail what has been said and written behind the scenes.

The Council Regulation 1224/2009 is both, a good example of these difficulties and an exceptional case because of the amount of national positions that are publicly available. And since it is a Council Regulation I will also only focus on the decision-making process in the Council.

To start the research on the decision-making, we should begin with two possible sources of documentation and help, the PreLex dossier of the regulation and the Council website on the Council configuration for agriculture and fisheries. But if you follow the two links, you will first notice that the Council website is nothing but embarrassing and that PreLex only lists a very limited number of Council documents, despite the fact that the Council was the main institution in this process and despite the fact that there are many more documents as you can see below.

Since we don't get much help over there, we need to do in-depth research on our own. Most documents that you will find in this article have been found via the advanced search in the online archive of the Council (see recent statistics), the rest was found via Google or added from PreLex.

So let's tell some parts of the story of Council Regulation 1224/2009:

On 14 November 2008, the European Commission published the Draft Council Regulation (81 pages plus explanatory memorandum) together with an extensive Impact Assessment, which, as always, initiated the whole policy process.

In the Council, the Working Party on Internal and External Fisheries Policy, a group of national experts from all member states, started working with this draft regulation on 15 January 2009. In its meeting on 22 January, the experts got a presentation of the legislative proposal by the Commission followed by a first exchange of view.

Afterwards, the Working Party continued its work on 29 January, on 5 February, on 12 February, on 19 February, on 5 March and on 12 March, examining the draft regulation article by article.

After the meeting on 12 March, several member states submitted their first comments and amendment proposals (chronological order): Italy, Bulgaria, Poland, Estonia, Greece, Sweden, Spain, Latvia, Germany, Portugal and the Netherlands.

These comments were included in the discussion at the Working Party meeting on 27 March. Until the next meeting on 2 April, Finland and Ireland filed their remarks, followed by Lithuania. These first 14 submissions by member states continued to be the basis for the following meetings on 7 April, on 16 April and on 21 April.

The Working Party meetings until mid-May did not have the Draft Regulation on their agenda, but several member states sent in their first, some already their second comments on the initial draft: United Kingdom, Poland (2nd), Belgium, Denmark, France, Spain (2nd), Sweden (2nd), Portugal (2nd), the Netherlands (2nd), Bulgaria (2nd).

Then, on 20 May 2009, a commented draft proposal (doc. 10152/09; almost 150 pages) preceded by a summary of comments from the member states and the Commission was published. Interesting to note is that, on the same date, an internal negotiation document (DS 329/09) that is not listed in the Council register was issued as a compromise basis for further negotiations during the Working Party meetings on 28 May, on 4 June, and on 11 June. This compromise proposal was revised several times in the discussions (see below) and it contains intermediate consolidated versions of the draft regulation.

Following these meetings and based on a number of questions asked by the Czech Council Presidency on 5 June, the national ministers meeting in the Council on 23 June 2009 held discussions on the draft regulation. Their answers to the questions raised by the Presidency are summarised in a document published three days after the Council meeting.

Around the date of the Council meeting and afterwards, several delegations also published new comments on the draft: Denmark (2nd), Slovenia, Belgium (2nd), Estonia (2nd), Germany (2nd), Slovakia, Lithuania (2nd), Denmark (3rd) and Latvia (2nd).

Based on these contributions, the Council Secretariat prepared a new negotiation draft until 3 July; the text is laid down in the revised meeting document DS 329/1/09 (see PDF from page 7; document not available on the Council website). This draft then was discussed in the following Working Party meetings on 9 July, on 15 July and on 22 July.

These discussions were followed by new comments and drafting proposals by several delegations: Bulgaria (3rd), Belgium (3rd), the Netherlands (3rd), Slovenia (2nd), United Kingdom (2nd), Cyprus, Denmark (4th), Ireland (2nd), Malta, Finland (2nd), Greece (2nd), Italy, Estonia (3rd), Germany (3rd), Latvia (3rd) and France (2nd).

Probably based on these contributions, the Working Party discussed the second revision of meeting document DS 329 (not available on the net) on 10 September . The Working party meeting on 14 September continued this work.

For the Working Party meeting on 18 September, the fourth revised version of the meeting document DS 329/4/09 (Word format!) was issued on 16 September. Also on 18 September, the date of the Working Party, Portugal issued their third written comments, followed by France, the last written comment by the member states in the preparatory phase.

On 25 September, a new draft proposal (13597/09 ADD 1) was published. According to the Council Secretariat it contained only minor changes compared to the fourth version of the negotiation document DS 329 (see above).

This proposal was then examined by the Working Party on 1 October, followed by a report for COREPER on 2 October. The report summarises the different positions of the member states at this point of the negotiations and requests COREPER to deal with these diverging opinions.

After its meeting on 7 October, COREPER sent another report to the upcoming EU Council on 19 October, reporting to the ministers which issues had not been sorted out by the diplomats and which needed political agreement on the highest level (quite a lot actually when you look into the document).

According to a note issued by the Council Secretariat on 5 November, the October Council then came to a political agreement, which subsequently led to a final compromise proposal (DS 641/09, not in Council register) put forward by the Swedish Presidency in agreement with the Commission on 23 October. This proposal was sent to the next Council meeting for final approval.

The Council Regulation was finally approved by the Council meeting on 20 November 2009 and published in the Official Journal (50 pages) on 22 December 2009, entering into force on 1 January 2010.

Of the 27 member states, only Finland abstained, the rest voted in favour. The summary of Council acts (pp. 20-23) includes special statements by the Commission, Finland, Italy and Slovenia. The Finnish statement makes clear that its abstention could also be understood as a "No".

This is the whole documentation of the process as far as I could track it within the Council.

You may have noticed that I didn't talk about any content, but going through the amount of documents would take days, and I am also no expert on fisheries.

It could still be worthwhile comparing the different draft versions of the regulation and the positions of individual member states. Or one could compare the drafts and the national positions with the positions of national and European lobby organisations. Maybe there is some open source software that could help doing this. Or some scientist with the time and budget to do so.

What we lack are meeting reports from the Working Party and Council meetings, which one probably could get from the Council Secretariat or from the national ministries in charge of fisheries. This would demand further journalistic investigation. These documents would help to get a more detailed view into the real discussion process.

Altogether, one can see the absolute complexity of EU negotiations and EU law-making. The regulation was passed last year and at the time only few actors were actually likely to be able to track the decision-making process while it was going on. Still, it is on us to retrace those processes and make them accessible to the public if the Council is not willing to become more transparent in its day-to-day work.

But even if we would have "A Leaking Union" there would be the need to follow closely every document that is coming out and policy experts would need to analyse new drafts and changes regarding their technical meaning and their influence on the policy process. Data blogging and data journalism and meticulous research cannot be replaced even if everything is public.

Somebody needs to find the right documents and somebody needs to filter the relevant from the irrelevant. Believing that this could be done in its entirety by voluntary work is an illusion.

In the end, this post has become way too long and has cost way too much time, but I hope I was able to show the length and depth of decision-making in the Council on this particular issue. What I would have liked to have was a simple tool to put all the links I have assembled above in a simple timeline so that it would be easier to track the process visually and to click at any point in time to see what was on the agenda - but that will be a task for the future.

Picture: © 27828336@N00 / CC BY-ND 2.0

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On the map below you find a marker for every EU member state. When you click on the marker you will get a link to the fish subsidies the country has received in the past and the comments and amendments tabled in the decision-making process on Council Regulation 1224/2009 described above.

Cecilia Malmström & transparency in the EU Commission

In a recent blog post (Google translated), Commissioner Malmström told that she would (partially) publicise her official communication on a special Commission website called CaROL (Cabinet's online register)*.

In the comments to the post I asked her:

Will you be able to convince your colleagues in the Commission to do the same?

and her Cabinet assistant Love Berggren today gave me the following answer:

Cecilia Malmström’s would certainly welcome if other Commissioner’s were to follow, and hopes to provide a good example by making this register available. But the decision is up to each and every Commissioner.

I want to thank her assistant Love for the answer - and I definitely hope that Ms Malmström will serve as an example for her colleagues, indeed!

PS.: This seems to be "Commissioners' Reactions Day", since fellow euroblogger Samuel just received a reaction to one of his blog posts from EU Commissioner for Agriculture Dacian Ciolos.

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* You can use the following short link for direct access to all the correspondence of Commissioner Malmström: bit.ly/9H8ib8 - which can be helpful because in default it shows only the last ten letters.

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Picture: © european_parliament / CC BY-NC-ND 2.0

Comitology: Some recent scientific insights (updated)

After my recent posts on "Comitology 2.0" and on "Public access to EU documents" I found it worthwhile to continue my research into that direction for a moment.

One of the things I came across and the first thing you might want to read is the 2008 European Law Journal article "How Transparent are EU ‘Comitology’ Committees in Practice?" by Gijs Jan Brandsma, Deirdre Curtin and Albert Meijer who include in their text a nice and concise history of the comitology system.

What they find in their analysis of the documents available in the Comitology Register in 2005 is that only "67% of the summary records were available through the register". More seriously, only "5.5% of the draft measures [those passed by the committees, JF] were available through the online register", keeping in mind that these "draft measures are the most important result of the committees" (p. 836).

Now, this is just a small dose of comitology. If you want the full dose of comitology, you can also read the 2010 PhD thesis by Gijs Jan Brandsma that is titled "Backstage Europe: comitology, accountability and democracy in the European Union". Since the comitology is to be reformed under the Lisbon Treaty, this might well be one of the last research projects done while the old system was still in place.

And since this thesis looks really promising, I think I'll dig right into it now...

Update: Having now read the first two chapters of Brandsma's dissertation, I'd like to say that this (especially chapter 2) is pretty much what anybody should read before talking about comitology or before discussing its reform. This is brilliant academic writing, easy to read even if you are not a political scientist and brief enough for a quick overview in case you need to prepare for an informed discussion, both in an academic as well as in a political context. Impressive!

Picture: © chivacongelado / CC BY-NC-SA 2.0

Public access to EU documents - A never-ending story

After having written about the 2009 report on public access to EU Council documents* and about "The Leaking Union" these days, I thought I'd just link the previous Council reports, too, and then put these into some perspective regarding the stalemate reform of public access to EU documents.

• 2002 (first annual report)
• 2003 (second annual report)
• 2004 (third annual report)
• 2005 (fourth annual report)
• 2006 (fifth annual report)
• 2007 (sixth annual report)
• 2008 (seventh annual report)

(Maybe somebody wants to take a look to see whether there are some interesting developments?)

In the meantime, the EU institutions are debating the recast of the Regulation 1049/2001 on public access to EU documents that is the basis for the above-mentioned reports. Already two years ago, in April 2008, the Commission proposed changes, but Council and Parliament have not come to an agreement (see the PRELEX dossier) until now.

Since December 2009, the entry into force of the Lisbon has changed the legal basis of the regulation and of the proposed modifications, as the Commission tells in an explanatory note from January.

The public right to access to documents is now governed by Article 15 paragraph 3 of the Treaty on the Functioning of the European Union (TFEU):

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.

General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.

Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph. [...]"

The proposal regarding the recast of the 2001 regulation is not affected, explains the Commission in its note, but since the other two institutions are unable to come to an agreement the Commission considers proposing some modifications.

I hope that there are people within the Commission, the Parliament and even the Council who are willing to bring these things forward - the Union desperately needs more transparency, in particular in the light of the initiatives to create a European public sphere.

PS: If you want to see what kind of requests for access to documents are made at the Council, you can follow this search query.

* full title: "Eigth annual report of the Council on the implementation of Regulation No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents"

The tweets of the Swedes (unfinished)

I have started drafting this article in December 2009 but it never got finished. I found it yesterday and thought to erase it, but it is still worth publishing seeing the bad work the Spanish Council Presidency is doing in its online communication (does anybody notice them?), especially compared to the Swedish Presidency.

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The Swedish EU Council Presidency has given us an incredible insight into their diplomatic work by allowing a number of its diplomats to use Twitter and to tweet from their work during the presidency semester.

Mårten Wierup (@M_Wierup), Deputy Antici at the permanent representation of Sweden to the EU, was one of these people to whom we, the interested public owe a great thank for their work in the name of openness and transparency.

I have chosen some interesting tweets of the almost 400 Mårten has published since May to exemplify what the public could learn (or could have learnt) by following him all this time.

I will quote a tweet and then comment on what this tells me:

May 9: Mårten Wierup "is at a human rights seminar with former czech communist dissidents at the czech foreign ministry, very very interesting"

Me: Being at the Czech foreign ministry, the participation at such a seminar is inter alia a) a possibility to see the work of the previous presidency and b) an opportunity to hold preparatory meetings for one's own presidency.

May 12: Mårten Wierup "is happy that most of the date negotiations for the third country meetings during our presidency has started Finally..."

Me: The "finally" shows that there has either been a delay or at least that the scheduling presure was becoming quite high 1 1/2 months before the start of the presidency.

May 15: Mårten Wierup "just came from a meeting about boking of rooms and interpretors and other practical and highly important issues for the presidency"

Me: A presidency is not just about content and representation, it is a lot about logistics. I remember having had the same kind of meetings before the German EU Council presidency, trying to get to know all the technical details you'd have no time to find out when under stress during the presidency.

May 19: Mårten Wierup "just came back from the Antici meeting which indicated that tomorrows Coreper might be fairly simple"

Me: This kind of short remarks on the "mood" of a meeting is probably the most valuable kind of background information you can get through tweets from people directly involved in EU politics, diplomacy, and administration. One might find an agenda of a meeting, but one will never be able to judge on how it went, although this can be absolutely important for the law- and decision-making of EU institutions. Transparency in this regard allows us to judge when and how certain issues were delayed, voted down, or where there have been problems that needed to be solved by one of the famous compromises.

May 22: Mårten Wierup "is once again on the council agendas for the coming 6 months"

Me: There is almost no surprise in most EU politics, so knowing when certain things like agendas are fixed can be very helpful to be prepared very early...

May 27: Mårten Wierup "is back in the coreper room again. Soon a discussion on actions to tackle illegal migration in the Mediterranean"

Me: Some hints on what is actually discussed in the Council, even when you didn't read the COREPER agenda ahead of the meeting.

June 4: Mårten Wierup "is on a meeting about crisis management during the presidency, very hard to imagine all the things that might occur"

Me: I would love to know the content of such kind of meetings. A tweet like this is a good reason to ask for more details.

June 19: Mårten Wierup "is on my way to a pre meeting with the last draft of Council conclusions which came during the night, looks quite good from our horizon"

Me: How often did you get this kind of indication on draft Council conclusions ahead of a meeting?

June 22: Mårten Wierup "On a pre meeting for Coreper - our ambassador is actually responsible for as many agenda points as the Czech ambassador"

Me: Here you realise that the next presidency actually takes over responsibilities ahead of the formal "change of guards".

June 25: Mårten Wierup "is starting preparatory work for next weeks Coreper and writing back ground notes for our ambassador"

Me: This is one of the tweets where one is reminded that diplomats or officials using Twitter actually show us how their work influences the work of those on the higher and highest levels - in this case that speaking points for the ambassadors are coming from Mårten (and others).

June 30: Mårten Wierup "Alright, 5 h to go. I suppose there isn't really that much to do about the things that aren't prepared now"

Me: It's just natural and human that people are nervous before a presidency, but it is still nice to see this underlined by such kind of tweets.

July 01: Mårten Wierup "the first Antici meeting went well although I think I was the one who enjoyed the cinamon rolls the most"

Me: There it goes, the presidency has started.

Here the draft ends, right before the actual start of the Presidency. It is worth reading back through Mårten Wierup's timeline to see how much insights he gave into the work of the Swedish Presidency - nothing of that could be seen with the Spanish. Will the Belgians be better?

Picture: © anaulin / CC BY-SA 2.0

EU Council & transparency: A long way to go

Facts & figures

• On 31 December 2009, the EU Council had 1,371,608 documents of which 24.2% were not publicly accessible (>300,000). 22,686 documents were only partially accessible.

• In 2009, the Council's online register had 554,952 different visitors viewing 10,011,440 screens.

• In 2009, 425 documents were produced as "Confidential" and 20 as "Secret". Only 156 of the former and 1 of the latter are actually mentioned in the online register. There is no mentioning of the number of documents classified "Top Secret".

• Requests for access were made to 8,443 documents that were not public. 6,452 (76.4%) of them were actually released, fully or partially. Most of the applicants (28.2%) came from Belgium. 5.6% of the refusals were for reasons of public security, 3.5% concerned military matters.

• Only three complaints regarding refusal to receive access to documents were made to the European Ombudsman, one of them regarding ACTA.

Source: Eigth annual report of the Council on the implementation of Regulation No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (draft)
Picture: © zkorb / CC BY-NC 2.0

The legal status of procedures leading to international agreements

The rules governing legislative and other procedures have been changed under the Lisbon Treaty, and their final legal status largely defines how transparent they have to be.

The following answer has been given by the Council of the European Union on the request to publicise an EU document regarding the ACTA negotations (page 3, para 8; own highlight):

[T]he Council would like to point out that, since the entry into force of the Lisbon Treaty, the scope of the institutions' legislative activities is defined in primary law. Article 289(3) TFEU provides that "[l]egal acts adopted by legislative procedure shall constitute legislative acts". Yet, a procedure leading to the conclusion of an international agreement, as provided under Title V of the TFUE, does not constitute a legislative procedure within the meaning of Article 289 TFEU.

On the ground of this assessment, the Council is refusing the full disclosure of the document requested.

I suppose that this assessment will also infringe the European Parliament's right to control the member states when they enter into international negotiations - so will MEPs accept this legal interpretation by the Council?

The Leaking Union

The "dark hole of Brussels" with its "obscure institutions" and its "opaque political processes" has become a powerful if not the main image to characterise the political system of the European Union.

A lot of what is going on in the political capital of our Union remains unnoticed by a wider public, not just because old and new media do not show enough interest but also because a lot of the relevant political interaction and documentation is confidential or not easily accessible if you are not located in Brussels.

Leaks to the outside world are seldom and the institutions work to prevent them:

"The Secretariat is examining ways of marking the electronic version of all official documents automatically sent to each delegation to allow identification of the source of any leaks." (EU Council 2006)

During the presentation of Wikileaks by spokesperson Daniel Schmidt at the re:publica 10 social media conference in Berlin yesterday I was asking myself whether we might soon see a change.

I knew Wikileaks before they published the now globally watched video shot from an Apache helicopter in Iraq, but I didn't really care about Wikileaks because I wasn't aware of the size and the complex mechanisms that the platform has established to secure the leaking of thousands of documents from Kenya over Iceland to the USA.

I realised that I had never considered searching for EU documents that had been leaked to the platform, and I suppose many EU journalists haven't either.

Right now, the Wikileaks archives are offline, but as soon as they are back on track, European bloggers and journalists should start searching for the hidden treasures we haven't seen yet. I suppose we will be able to find one or another scoop, and if not it won't take long until those in or around the EU institutions who have access to important documents will start leaking them.

The advantage of the complexity of the European Union is that it is not just one large black hole but that it has so many possible access points that it offers so many little holes, so many brilliant opportunities for leaks. And there are so many diverse interests that one or another side will be willing to make certain developments public.

So far, the possibilities for those holes to be tapped were limited, but Wikileaks and other comparable platforms will allow to build the tubes that transport the leaked content to those who try to uncover the hidden, to show what is discussed and decided in our names behind closed doors, paid by our taxes and legitimated by our votes.

I am looking forward to the day when Wikileaks goes back online to see whether the Leaking Union is already a reality or whether it will become one very soon.

(updated with the citation in the 3rd paragraph on 20 April 2010)

Picture: http://www.flickr.com/photos/ilianov/ / CC BY-NC-SA 2.0

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.