Public Transparency

1
Public Transparency Arms Trade

• International Conference in Nyköping
• May 5, 2001

Third Session Transparency Tomorrow I
Possibilities and Obstacles
Transparency in Arms Export and EU Law Dirk
Roland Haupt
2
Main Subjects of this Presentation

• First Part
• ? Transparency as legal concept
• ? The relevant EU law as it
• stands
• Second Part
• ? Some reflections on how the
• law ought to be
• ? Possible future developments
• Summary

3
Declaration on the right of access to
information(annexed to the Final Act of the 1991
Maastricht Treaty)
First Part

• The Conference considers that transparency of the
  decision-making process strengthens the
  democratic nature of the institutions and the
  publics confidence in the administration. The
  conference accordingly recommends that the
  Commission submit to the Council
  a report on measures designed to improve public
  access to the information available to the
  institutions.

4
Article 255 EC

• 1. 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 European Parliament, Council and
  Commission documents, subject to the principles
  and the conditions to be defined in accordance
  with paragraphs 2 and 3.
• 2. General principles and limits on grounds of
  public or private interest governing this right
  of access to documents shall be determined by the
  Council, acting in accordance with the procedure
  referred to in Article 251 within two years of
  the entry into force of the Treaty of Amsterdam.
• 3. Each institution referred to above shall
  elaborate in its own Rules of Procedure specific
  provisions regarding access to its documents.

5
Article 207(3) EC

• The Council shall adopt its Rules of Procedure.
• For the purpose of applying Article 255(3), the
  Council shall elaborate in these Rules the
  conditions under which the public shall have
  access to Council documents. For the purpose of
  this paragraph, the Council shall define the
  cases in which it is to be regarded as acting in
  its legislative capacity, with a view to allowing
  greater access to documents in those cases, while
  at the same time preserving the effectiveness of
  its decision-making process.

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Prolegomena on Transparency as Legal Concept

• Accessibility approach
• Refined approach Accessibility and readiness of
  intelligibility
• ? Perspicuity
• ? Clearness
• ? Certain degree of pedagogical
• endeavors
• in order to allow a critical review supporting a
  meaningful democratic dialog on accountability

7
Article 296(1)(a) EC

• 1. The provisions of this Treaty shall not
  preclude the application of the following rules
• (a) no Member State shall be obliged to supply
  information the disclosure of which it considers
  contrary to the essential interests of its
  security

8
Article 296(1)(b) EC

• 1. The provisions of this Treaty shall not
  preclude the application of the following rules
  
• (b) any Member State may take such measures as it
  considers necessary for the protection of the
  essential interests of its security which are
  connected with the production of or trade in
  arms, munitions and war material such measures
  shall not adversely affect the conditions of
  competition in the common market regarding
  products which are not intended for specifically
  military purposes.

9
Article 298 EC (abridged) I

• If measures taken in the circumstances referred
  to in Article 296 have the effect of distorting
  the conditions of competition in the common
  market, the Commission shall, together with the
  State concerned, examine how these measures can
  be adjusted to the rules laid down in the Treaty.

10
Article 298 EC (abridged) II

• By way of derogation from the procedure laid down
  in Articles 226 and 227, the Commission or any
  Member State may bring the matter directly before
  the Court of Justice if it considers that another
  Member State is making improper use of the powers
  provided for in Article 296. The Court of Justice
  shall give its ruling in camera.

11
Secondary EU Law on Transparency I

• Council Decision 93/731/EC on public access to
  Council documents
• (as amended by Council Decision 96/705/EC and
  Council Decision 2000/527/EC)
• ? Document 93/730/EC Code of
• Conduct concerning public access to
• Council and Commission documents
• Commission Decision 94/90/ECSC, EC, Euratom on
  public access to Commission documents
• European Parliament Decision 97/632/ECSC, Ec,
  Euratom on public access to European Parliament
  documents

12
Caselaw of the Court of First Instance on
Transparency

• T-194/94 Carvel and Guardian Newspapers Ltd. v.
  Council
• T-105/95 WWF UK (World Wide Fund for Nature) v.
  Commission
• T-124/96 Interporc Im- und Export GmbH v.
  Commission (Interporc I)
• T-610/97 R Carlsen and Others v. Council
• T-83/96 van der Wal v. Commission
• T-174/95 Svenska Journalistförbundet v. Council
• T-188/97 Rothmans International BV v. Commission
• T-14/98 Hautala v. Council
• T-309/97 The Bavarian Lager Company Ltd. v.
  Commission
• T-92/98 Interporc Im- und Export GmbH v.
  Commission (Interporc II)
• T-188/98 Kuijer v. Council
• T-20/99 Denkavit Nederland BV v. Commission
• T-123/99 JTs Corporation Ltd. v. Commission

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ECJ Caselaw on Transparency

• 328/85 Deutsche Babcock Handel GmbH v.
  Hauptzollamt Lübeck-Ost
• C-58/94 Kingdom of the Netherlands v. Council
• C-321/96 Mecklenburg v. Kreis Pinneberg Der
  Landrat
• C-174/98 P and C-189/98 P Kingdom of the
  Netherlands and van der Wal v. Commssion
• C-353/99 P Council v. Hautala and Others oral
  argument from the parties heard judgment
  pending
• C-239/00 P Council v. Kuijer pending
• C-387/00 European Parliament v. Council pending

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Secondary EU Law on Transparency II

• Proposal COM(2000)30 final/2 for a Regulation of
  the European Parliament and the Council regarding
  public access to European Parliament, Council and
  Commission documents (Transparency Regulation)
• ? European Parliament Committee on
• Citizens Freedom and Rights, Justice
• and Home Affairs Proposed
• Compromise Amendments
• Preambulary recital (9)
• In principle, all documents of the institutions
  should be accessible. However, certain public
  interests should be protected by way
  of exceptions.

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Secondary EU Law on Transparency III

• Preambulary recital (6b)
• Special treatment for certain highly sensitive
  documents
• Draft Article 4 Exceptions
• The institutions shall refuse access to
  documents where disclosure could significantly
  undermine the protection of
• ? (a) the public interest and in
• particular gtgtgt

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Secondary EU Law on Transparency III

• (continued)
• public security,
• defence and international
• relations,
• relations between and/or with
• the Member States or
• Community or non-Community
• institutions,
• financial or economic interests
• 
  gtgtgt

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Secondary EU Law on Transparency III

• (continued)
• ? (c) business, commercial and
• industrial secrecy
• ? (d) confidentiality as requested
• by the third party having
• supplied the document or the
• information, or as required by
• the legislation of the Member
• State.

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Legal Issues So Far

• What is the relationship between, on the one
  hand, Articles 296 and 298 EC and, on the other
  hand, Articles 255, 207(3) EC and the draft
  Transparency Regulation?
• What are the main legal differences between the
  draft Transparency Regulation and the present
  secondary law on transparency?
• What impact does the caselaw on accessibility
  have on these developments?

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Secondary EU Law on Transparency IV

• Draft Article 6
• Two-track system of remedies when access is
  denied
• ? Court proceedings pursuant
• to Article 230 EC
• ? Complaints to the Ombudsman
• under Article 195 EC

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ECJ Caselaw on Derogations Involving Essential
Interests of National Security

• 222/84 Johnston v. Chief Constable of the Royal
  Ulster Constabulary
• C-367/89 Aimé Richardt and Les Accessoires
  Scientifiques
• C-70/94 Werner v. Germany
• C-83/94 Peter Leifer and Others
• C-120/94 Commission v. Greece
• C-273/97 Sirdar v. The Army Board and Secretary
  of State for Defence
• C-414/97 Commission v. Spain
• C-285/98 Kreil v. Germany

21
Court of Justice of the European CommunitiesC a
s e 2 2 2 / 8 4Marguerite Johnston v. Chief
Constable of the Royal Ulster ConstabularyJudgmen
t of May 15, 1986 1986 ECR 1651 (at 1684 26)

• It must be observed in this regard that the only
  articles in which the Treaty provides for
  derogations applicable in situations which may
  involve public safety are Articles 36, 48, 56,
  223 now 296 and 224 which deal with exceptional
  and clearly defined cases. Because of their
  limited character those articles do not lend
  themselves to a wide interpretation and it is not
  possible to infer from them that there is
  inherent in the Treaty a general proviso covering
  all measures taken for reasons of public safety.
  

22
EU Code of Conduct on Arms Exports I

• Third preambulary recital
• The Council of the European Union,
  
• DETERMINED to set high common standards which
  should be regarded as the minimum for the
  management of, and restraint in, conventional
  arms transfers by all EU Member States, and to
  strengthen the exchange the exchange of relevant
  information with a view to achieving greater
  transparency .

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EU Code of Conduct on Arms Exports II

• Operative Provision 8, first and second phrase
• Each EU Member State will circulate to other EU
  Partners in confidence an annual report on its
  defence exports and on its implementation of the
  Code. These reports will be discussed at an
  annual meeting held within the framework of CFSP.

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EU Code of Conduct on Arms Exports III

• Operative Provision 8, third phrase
• The meeting will also review the operation of
  the Code, identify any improvements which need to
  be made and submit to the Council a consolidated
  report, based on contributions from Member States.

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EU Code of Conduct on Arms Exports IV

• Operative Provision 3 (abridged)
• EU Member States will circulate details of
  licences refused together with an explanation of
  why the licence has been refused. Before any
  Member State grants a licence which has been
  denied by another Member State for an essentially
  identical transaction within the last three
  years, it will first consult the Member State
  which issued the denial. If following
  consultations, the Member State nevertheless
  decides to grant a licence, it will notify the
  Member State issuing the denial.

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EU Code of Conduct on Arms Exports V

• Operative Provision 4
• EU Member States will keep such denials and
  consultations confidential and not to use them
  for commercial advantage.

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Way Ahead
Second Part

• Deletion and amendment of Article 296 EC?
• Transformation of the Code of Conduct into a
  legally binding CFSP instrument?
• A Code of Conduct limiting the opportunities for
  invoking Article 296 EC?
• Amendment of the Code of Conduct providing for a
  standardization and formatting of reported
  information?

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Second Annual Report According to Operative
Provision 8 of the EU Code of Conduct on Arms
Exports

• Section IV, fifth paragraph, subparagraph 4
• The annual report on the application of the Code
  of Conduct is drawn up on the basis of the Member
  States reports. However, the fact that some of
  the data transmitted are hard to compare,
  especially statistics, makes the task of
  summarizing the information more complex and may
  hamper joint efforts to achieve transparency.
  gtgtgt

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Second Annual Report According to Operative
Provision 8 of the EU Code of Conduct on Arms
Exports

• Section IV, fifth paragraph, subparagraph 4
  (continued)
• In order to improve transparency and to increase
  the informative value of the annual report, the
  Member States will, as far as possible, endeavor
  to define a harmonized framework for national
  reports, particularly as regards statistics.

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Annex I to the Second Annual Report According to
Operative Provision 8 of the EU Code of Conduct
on Arms Exports

• Second recital
• Statistics are compiled differently by each
  Member State no uniform standard is used.
  Consequently, not all countries have been able to
  submit this information owing to current
  procedures in the area of arms export controls or
  data protection legislation.

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Summing up

• Ambivalence and uncertainties of the present EU
  law on transparency of arms exports What
  prevails secrecy or transparency?
• Potential for enhanced transparency
• ? as legal concept via the
• envisaged two-track system of
• remedies
• ? as nonlegal concept via further
• developments of the Code of
• Conduct, particularly in the field of
• standardization and formatting of
• reported information

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Final Remarks

• http//svenska-freds.se/transparency/may5.shtml
• Thank you very much for your attention!