Clamour for openness

Date: 09/11/1995

It is not sufficient for the Swedes that Brussels 'leaks like a sieve anyway'. Emily von Sydow reports on the Nordic demand for greater transparency in the Union and widespread fears of what this might entail for its members.

NORDIC openness has been seen in a new light in recent weeks, prompting a French diplomat to lament - behind closed doors of course - the fact that the EU has enlarged northwards. It just goes to show you can't trust a Nordic with secrets, say the cynics.

With Environment Commissioner Ritt Bjerregaard taken hostage as a typical example of what the openness à la Nordique will lead to, those sceptical about the trend have had ample opportunity to show how openness will dilute the Union and paralyse the work of the Council of Ministers.

But the Bjerregaard diaries have little to do with a 200-year-old Swedish constitutional right which gives the public access to documents and is a driving force behind Stockholm's campaign for greater openness in EU affairs.

The Swedish establishment would look sternly on a member of the government who published a similar book while in office and there is secrecy in the Nordic countries as well: government meetings are confidential in Sweden, as are meetings of the parliamentary committees. National security and monetary affairs are protected by more or less the same secrecy laws.

In fact, former Swedish Ambassador Lars Anell, who led his country's EU delegation through the membership negotiations, always used to calm his adversaries, whether they be Euro-sceptics at home or Swede-sceptics in Brussels, by insisting that Sweden was no different from any other civilised democracy: it too needed a certain degree of confidentiality in the negotiating process.

“We have made it very clear that we do not strive for openness in negotiations. They have to be dealt with confidentially. But when the result is on the table, it should be open in all aspects. Thus secret protocols and declarations are unacceptable to us. We want it to be clear what is secret and what isn't,” explained a Swedish diplomat.

Swedish openness rests on two pillars: one is access to documents and the other is the informant's right to communicate, the so-called 'meddelarfrihet'.

The access to documents rule says that all mail and documents entering a public service must be registered. This register is open to the public and includes information about the sender of the document and a register number, and can thus be demanded from the authority in question. Even secret documents are registered and it is sometimes worth trying to ask for publication of those as well.

A reply can be expected within 24 hours. A refusal must be explained and can be challenged in the national courts. What is more, the sender of the information has no say over whether it is published - it is up to the authority which receives the document to decide.

The 'meddelarfrihet' means that civil servants are protected by law and cannot be sued for forwarding information. It is unlawful to investigate a suspected leak - the responsibility for publishing the material always lies with the publisher, who can be tried, and never with the informant. This is the legal backdrop which regulates the well-known system of leaks by Swedish officials in Brussels.

Swedish openness is deeply rooted in its citizens' rights and is not regarded as the journalists' exclusive turf. One of the biggest misunderstandings in Brussels is the assumption that something is 'transparent' simply because a journalist can get hold of it. That is why it is not sufficient for the Swedes that Brussels “leaks like a sieve anyway”.

One Council of Ministers official, thoroughly weary of the Nordic attitude, describes it as “bureaucratic openness”. He insists it has disrupted a well-functioning system and created a huge bureaucracy around matters which were handled informally before. Bureaucrats are sitting on the documents evaluating whether or not they should be published, instead of simply allowing a nice steady flow of leaks, as before.

When the transparency issue was raised in Brussels a couple of years ago, many criticised the proposals as a threat to Council efficiency. Secrecy was the name of the game, allowing countries to perform face-saving manoeuvres designed to appease the public back home. Voting records should therefore not be disclosed, the critics argued.

Voting records were made official almost two years ago. How has the removal of this vital instrument of decision-making hampered the Council's work? In no way, officials admit. But a Belgian diplomat now concludes that secret voting records were not so important in themselves, but because the move could open up a Pandora's box which would lead to more detrimental openness.

Another step towards openness which many feared would undermine Council efficiency was the introduction of televised public debates. The normal argument against this is that “all the real debate will be carried out in the corridors. Small countries will be left out.” Few, though, were able to give examples of debates which were not held in the proper forum because of the new rules.

As one Swedish diplomat commented: “There are still debates in the Council and decisions are still being taken.”

But this is contested by a French diplomat, who said that at the last meeting of EU foreign ministers, the French, British and Germans left the room during a debate on Yugoslavia. “There was still a debate, but it went on elsewhere and the small countries did not participate. That is very serious.”

But to the Belgians and Luxembourgers, mainly, it is the publication of the protocols and declarations which accompany votes - agreed on by EU foreign ministers last month - that will deliver the final and paralysing blow to Council decision-making. These secret arrangements were seen as an essential instrument in achieving compromises, allowing member states effectively to say that they do not like a particular directive but will go along with it if fellow ministers promise it will be reviewed after a few years, or if they can interpret it in a special way.

Critics of the change say loosing that instrument will simply mean that compromises will in future be struck in other ways, outside the limelight. That remains to be seen.

The publication rule has only been in effect for a few weeks and so far there is no proof that it will put a halt to compromises. But it will come, predicted one Belgian diplomat, although he could not cite a specific issue which would be extra hard to deal with as a result of the lack of secret protocols.

One Council official claimed the publication of the protocols has made legal texts unduly long and complicated, because everybody wants to put all kinds of safeguards in the text. “That's the opposite of transparency,” he concluded.

The Finns are not seen as masters of openness by Swedish standards, but it is Finland which has submitted a written proposition on how the Maastricht Treaty should be amended at next year's Intergovernmental Conference to include an article on openness.

The Reflection Group which is preparing the ground for the IGC may discuss this proposition at a meeting on Monday (13 November). The proposal concerns access to documents only and not the informant's rights or 'meddelarfrihet', which is a Swedish device. But Swedes are confident that the move towards greater transparency is gathering pace quickly and do not want to complicate the process now by pressing for an informant's rights clause in the treaty. One step at a time is better, they argue, saying the EU must learn to live with the present rules and, once they are working, the 'meddelarfrihet' rule will be introduced gently.

Openness is often cited as a block to efficiency among the older member states. It is interesting to note, however, that nobody in the European Commission, nor in the Council's Secretariat-General, nor in the member states' permanent representations, is able to give a concrete example of an issue which has been either blocked or prolonged by the new tradition of openness.

Comforted by this knowledge, the Swedes, Danes and Finns insist that efficiency actually demands openness. Unless the EU opens up, they warn, the Nordics will desert the European project.

The old referendum ghost from membership negotiations has thus reappeared on the scene.

This has led one Swedish diplomat to describe transparency as one of the most important issues facing the IGC, insisting on the need to “legitimise the EU through openness”.