Council: Leaking information from confidential Council meetings OK

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9 March 2005 - Hans-Peter Martin, an independent Austrian MEP, has asked the Council several written questions about the transparency of the Council process. The first time they avoid his question, but after persisting he receives the answer that no sanctions will be taken against people who leak information from confidential Council meetings.

Translation of the original German/French text

The President. Question Nr. 12 from Hans-Peter Martin (H-0143/05)

Subject: Session conducting practice

Almost all Council sessions where decisions are take are closed. Nonetheless, over and over again, Council members publicly communicate details from those sessions in Public.

What sanctions do Council members face for such actions?

What actions does the Council take to obtain maximal transparency, and why aren't many more sessions made public, at least if they concern legislation decisions?

What does the Council answer to the allegations that many of its activities take place using undemocratic processes, decided behind closed doors?

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Schmit, exercising President of the Council. The Council reminds the Honourable Parliamentarian the that every Council member is free to present its position at the press conferences following the Council sessions and to explain elements of the debate which it thinks it should make public to situate the context of its position. The Council is generally does not comment on the public declarations by its members.

Regarding the transparency of the operation of the Council, the Council underlines that, conforming to article 11, paragraph 6, of Annex II of its Rules, the general secretariat of the Council makes public, after the adoption of its decision by te Council in the course of a procedure under Article 251 of the Treaty, or after the definitive adoption of the act concerned, all legislative documents relating to said act, i.e. those which were created before the one of those decisions and which are not covered by any of the exceptions mentioned by Article 4, paragraphs 1 and 2 and paragraph 3, second subparagraph, of the Rules 1049/2001.

At the request of the Member State concerned, the documents which are covered by that which preceded the decision, and which reflected the position of the delegation of that Member State, are not made publicly accessible. On the other hand, as long as the negotiations on a draft text go on, the Council reserves the right not to divulge the identity of the delegations when the conditions of Article 4, paragraph 3, of its Rules are met.

Thus, the Council conforms to the letter and the spirit of those official texts, while ensuring a maximum level of transparency.

I hope my presentation was also sufficiently transparent.

Regarding the publication of the votes themselves, the Council reminds the Honourable Parliamentarian that, in the legislative field, those are automatically made public and invites him in that regard to refer to the answers given to a series of written questions in 2003 and 2004 on the same topic.

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Martin, Hans-Peter (NI). Mr President! Mr. President of the Council, this is very frustrating. You have not answered any of my questions in any way whatsoever. I am not asking you for documents, but am asking you concretely: when you hold a Council meeting, and afterwards someone states "this and that was said". What sanctions do Council members risk in this case? How is dealt with such people?

The two other questions do not relate to the legal situation, of which I am very much aware, but to what you think to actually undertake to counter these reproaches that you are some kind of secrecy organisation. It is also not about what is the legal situation, but about the question: what is concretely intended? I ask you once more, in the interest of general transparency, to actually answer this question: what happens with a minister or a Council member, which says: "this and that has been said in a confidential discussion in a closed session"?

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Schmit, exercising President of the Council. Juridically, there are no sanctions. That is very clear. And we do not intend to introduce any. One cannot at the same time ask for more transparency and to sanction, in fact, the freedom of speech of Council members, even though they, sometimes, misuse this liberty to speak. I cannot see how one could introduction sanctions in this respect.

Comment: Rebentisch (FFII)

I would like to quote from the Council's rules of procedure:

• Article 6 Professional secrecy and production of documents in legal proceedings
• Without prejudice to Articles 8 and 9 and to provisions on public access to documents, the deliberations of the Council shall be covered by the obligation of professional secrecy, except in so far as the Council decides otherwise.
• The Council or Coreper may authorise the production for use in legal proceedings of a copy of or an extract from Council documents which have not already been released to the public in accordance with the provisions on public access to documents. Annex II Article 11 Documents directly accessible to the public
• This Article shall apply to all Council documents, provided that they are not classified and without prejudice to the possibility of making a written application in accordance with Article 6 of Regulation (EC) No 1049/2001. 15.4.2004 L 106/39 Official Journal of the European Union EN (1) OJ L 8, 12.1.2001, p. 1.
• For the purpose of this Article: — “circulation” shall mean distribution of the final version of a document to the members of the Council, their representatives or delegates; — “legislative document” shall mean any document concerning the examination and adoption of a legislative act within the meaning of Article 7 of the Council's Rules of Procedure.
• The General Secretariat shall make the following documents available to the public as soon as they have been circulated: (a) documents of which neither the Council nor a Member State is the author, which have been made public by their author or with his agreement; (b) provisional agenda for meetings of the Council in its various configurations; (c) any text adopted by the Council and intended to be published in the Official Journal.
• Provided that they are clearly not covered by any of the exceptions laid down in Article 4 of Regulation (EC) No 1049/2001, the General Secretariat may also make the following documents available to the public as soon as they have been circulated: (a) provisional agenda of committees and working parties; (b) other documents, such as information notes, reports, progress reports and reports on the state of discussions in the Council or one of its preparatory bodies which do not reflect individual positions of delegations, excluding Legal Service opinions and contributions.
• The General Secretariat shall make the following legislative documents available to the public, in addition to the documents referred to in paragraphs 3 and 4, as soon as they have been circulated: (a) cover notes and copies of letters concerning legislative acts addressed to the Council by other institutions or bodies of the European Union or, subject to Article 4(5) of Regulation (EC) No 1049/2001, by a Member State; (b) notes submitted to Coreper and/or to the Council for approval (“I/A” and “A” item notes), as well as the draft legislative acts to which they refer; (c) decisions adopted by the Council during the procedure referred to in Article 251 of the EC Treaty and joint texts approved by the Conciliation Committee.
• After adoption of one of the decisions referred to in paragraph 5(c) or final adoption of the act concerned, the General Secretariat shall make available to the public any legislative documents relating to this act which were drawn up before one of such decisions and which are not covered by any of the exceptions laid down in Article 4(1), (2) and (3), second subparagraph, of Regulation (EC) No 1049/2001, such as information notes, reports, progress reports and reports on the state of discussions in the Council or in one of its preparatory bodies (outcomes of proceedings), excluding Legal Service opinions and contributions. At the request of a Member State, documents which are covered by the first subparagraph and reflect the individual position of that Member State's delegation in the Council shall not be made available to the public under these provisions.