Dr Vigjilenca Abazi
Assistant Professor of European Law
Maastricht University
Documents related to various topics, such as Transatlantic Trade and Investment Partnership (TTIP) negotiations, EU Food Safety Authority oversight, and tax justice, share a common factor: accessing them requires select Members of the European Parliament (MEPs) to participate in closed reading rooms. This blog post will examine how this departure from transparent parliamentary oversight is becoming increasingly common and question its potential impact on public access to documents requests.
Background
Closed reading rooms are confidential meetings where sensitive documents, often classified as EU official secrets, are reviewed. Participants receive these documents at the start of the meeting and return them at its conclusion. Copying, note-taking, and discussing the content within meeting minutes are strictly prohibited (Art. 6, Interinstitutional Agreement between the European Parliament and the Council of 12 March 2014).
This practice deviates from the European Parliament’s typical transparency regarding meetings and discussions. It originated with the implementation of EU official secrets regulations, specifically the Interinstitutional Agreement of 2002 between the European Parliament and the Council. This agreement outlines the European Parliament’s access to sensitive information concerning security and defense policy (see Art. 3 and Annex, second paragraph). Referred to as a “secured room” in the agreement, its purpose was to grant access to sensitive documents for parliamentary oversight while minimizing risks of unauthorized disclosure or leaks.
Initially limited to security and defense matters involving documents deemed official secrets, the practice expanded. A Council Decision in 2013 broadened EU official secrets rules beyond security and defense to encompass “activities in all areas that require handling classified information.” This resulted in a surge in MEPs utilizing closed reading rooms to access sensitive information.
Closed Oversight
At first glance, closed reading rooms, or more broadly “closed oversight” (as explored in-depth in this recent article), might appear unavoidable when dealing with official secrets. This is not solely an EU concern; it’s a prevalent global practice (e.g. see this recent report). However, this practice raises important questions:
Can closed oversight be monitored effectively?
Accountability extends beyond executive bodies; oversight entities like the European Parliament must also maintain transparent procedures. This includes tracking reviewed documents, ensuring meeting minutes reflect discussed topics (within limitations imposed by official secrets), or employing other methods to demonstrate accountability. The existing procedure for accessing official secrets (see ‘background’ section) makes public or even internal tracking of this oversight process quite difficult.
To what degree do internal and inter-institutional regulations impact primary law oversight structures?
Another concern surrounding closed oversight is its development primarily through procedural rules and inter-institutional agreements. EU institutions are within their rights to establish cooperative frameworks and procedural rules according to primary law (see Art. 295 TFEU, Art. 240(3) TFEU). However, it’s crucial to analyze whether this approach to shaping oversight aligns with the EU’s principle of openness and determine how it influences the overall oversight process.
Does recent case law provide any insights regarding closed oversight?
The Court of Justice of the European Union (CJEU) recently clarified the significance, scope, and procedural aspects of the European Parliament’s right to access information during international negotiations (see previous EU Law Analysis blogs here and here). However, case law doesn’t address the method of document review. Importantly, primary law mandates “immediate and full” information accessibility (see Art. 218(10) TFEU) without specifying how access should be structured.
What about public discussion?
As the direct representative of citizens (Art. 10 TEU), the European Parliament plays a crucial role in bridging the information gap between Brussels and the public. However, the European Parliament has yet to actively create opportunities for public discourse and foster debate on matters discussed behind closed doors.
Spillover Effect Even to Public Access to Information?
Recently, four MEPs submitted a public access request to the European Food Safety Authority (EFSA) seeking unpublished studies that formed the basis of EFSA’s glyphosate carcinogenicity assessments. EFSA did not immediately grant public access to these studies. Notably, EFSA’s response proposed a “physical reading room” for the MEPs, reasoning that the study owners appeared open to sharing them in this manner.
In essence, EFSA offered a closed room for reviewing studies in response to a public access request meant to make these documents available not just to these four MEPs but to the public. It’s crucial to highlight that the EU’s public access to documents framework does not include “physical reading rooms,” and such a practice contradicts the principle of maximizing public document access. It appears EFSA considers a closed reading room a “solution” to the study authors’ potential reluctance to disclose their work. However, this approach falls outside the legal boundaries of public access to information. Legally, these authors have no veto power over the public availability of their studies, nor can they dictate how public access to documents should be managed.
The EFSA situation is ongoing, and the four MEPs haven’t received all requested documents. This case raises a broader concern: is the practice of closed reading rooms expanding beyond institutional access to encompass public access to documents? This issue requires careful and continuous examination.
Barnard & Peers: chapter 8
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