Fundamentally, the question at issue is therefore this: does the identity of the Member States submitting ‘amendments’ in a ‘legislative procedure’ constitute information that may be refused under the exception provided for in Article 4(3) of Regulation No 1049/2001?

The answer to this question must, in my view, be in the negative.

He then goes on to substantiate this position in the light of transparency’s contribution to the overarching principle of democracy.

67. Inconvenient though transparency may be, when carrying out legislative as well as non-legislative functions, it must be said that it has never been claimed that democracy made legislation ‘easier’, if easy is taken to mean ‘hidden from public scrutiny’, as public scrutiny places serious constraints on those involved in legislating.

Member States are warned that when they participate in the EU’s legislative process, the institution within which they do so, the Council, is best viewed as a legislative chamber, evidence for which the AG sees in the progressive development of this principle in the successive Treaties. Therefore,

69. It is worth stating, once again, that Member States taking part in an EU legislative procedure as members of an institution are more like the common perception of a national legislature than they are like a sovereign body playing a role in relations governed by international law. The mind-set of discretion and even secrecy, which is justified in the context of relations between sovereign players, is out of place in the context of the European Union, which, in this respect, sees itself primarily and increasingly as a community based on the principles of the rule of law and democracy.

[...]

71. For this reason I am unable to endorse the argument of the Czech, French and Spanish Governments to the effect that transparency and, consequently, democratic debate is ensured by granting access to the material content of the document only. To do so would perhaps allow an abstract debate on the proposals at issue, but this would still lack the added value of knowing who supported them and who criticised them. Democratic political debate involves, above all, accountability; and to have accountability it is essential to know the identity of those participating in the debate and, in particular, the terms on which they are doing so.

It remains to be seen whether the EUCJ, often regarded as the EU’s constitutional court [1], is willing to embrace this line reasoning, and thereby accept its full consequences. In any case, the AG’s opinion marks the clearest perspective on the principle of democracy in the EU’s legislative process, as well as transparency’s role therein, to date.

- MH

[1] See P. Craig and G. de Búrca, EU Law: Text, Cases, and Materials, fourth edition, pp. 72-76.

The described event attracted the attention of several Russian colleagues (see http://svdrokov.blogspot.ru/2013/02/blog-post_11.html), who [...] noted the lack of transparency of the seminar on transparency. This blog by Maarten Hillebrandt is therefore proposed to the reader [...] published [...]on the “Open Government in the European Union» blog.

In her dissertation, Buijze uses a triple concept of the European citizen in order to disentangle the several rationales that underpin transparency at the European level. She recognises the citoyen (the participating citizen in the classical Greek sense), the homo dignus (a rights-bearing individual in the private sphere) and the homo economicus (the individual in pursuit of material welfare). Each of these citizen types, Buijze argues, provides a different rationale for certain types of access to information. She comes to this conclusion through a detailed analysis of a number of fields of law (public access to information, public procurement, electronic communications law, and state aid).  

Buijze’s defence committee consisted of European and administrative law experts from within the Netherlands and outside of it. Prof. Paul Craig of Oxford was present and sought to challenge Buijze’s tripartition of citizenship, arguing that it might have made sense to stay with a type of citoyen that includes both the participation and the rights-bearing type on the one hand, and the homo economicus on the other side. Buijze nevertheless convincingly argued in favour of a real distinction that made a difference to the rationale for transparency. Prof. Deirdre Curtin, of the Open Government in the EU research team, was also present in the defence committee. Her question concerned Buijze’s use of methods, making a broader point of the use of explicit methods and quasi-legal materials in the field of law.

After deliberation, Buijze was conferred the title of doctor of laws, with distinction (cum laude). Her book represents an innovative contribution to the fields of EU transparency, administrative law, and constitutional law.

Click here for Utrecht University’s press release on Buijze’s dissertation.

In September 2013, Buijze’s dissertation will become available to the public here.

- Maarten Hillebrandt

The GC’s 2012 judgement in Access Info Europe caused a stir by affirming the NGO’s assertion that citizens need to be able to attribute policy positions to member states in order to participate meaningfully in European democracy. The practice by the Council to disclose arguments put forward without revealing their originating member states had been in place for some years before AIE challenged it. It is seen by the Council as an acceptable compromise between the requirements of democratic participation and those of effective decision-making. Ironically, Access Info Europe was in the process of mapping member state positions in the reform of the access to documents regulation for a report that it was writing, when it stumbled upon this practice.

The subsequent court case and appeal have caused quite a stir, not least among the Council’s members, several of whom (the UK, France, the Czech Republic, and Greece) have intervened on the Council’s side, while the European Parliament intervened on the side of Access Info Europe. The hearing provided a better picture of the various parties’ view in the matter. As Deirdre Curtin has pointed out in a recent blog, it is increasingly difficult for outsiders to follow the litigating parties’ exchange of views in ongoing proceedings before the Luxembourg courts. However, Access Info Europe, which has always made a point of seeking wide publicity for its interactions with the European institutions, has posted its own summary of the hearing on its website, including main arguments extended by both sides.

By all appearances, the two sides of this argument have again reiterated their core claims. Essentially, the conflict can be said to boil down to an “effectiveness v participation” conflict. The Council, and its interveners, argue that it will not be able to expediently come to common positions with disclosure taking place throughout the decision-making process. They further argue that citizens will often not be able to interpret the precise meaning of the documents exchanged during the negotiation process, which will lead to bashing and populism in the news media on the one hand, and grandstanding and elusive practices within the Council on the other. Access Info Europe and the EP in turn extend that disagreement and negative publicity are simply part of the democratic process, and moreover that the current Council practice is incompatible with the rules on access to documents and the case law. The current case, and the actors involved in it, confirms a long-standing division line within and beyond the Council.

For the moment, two questions remain: why are the EU’s (mainly, but not exclusively, Nordic) transparency-friendly member states not involved? And will the Court of Justice of the EU overturn the General Court’s ruling, as it has frequently done in the recent transparency case law, to downplay expectations of citizen involvement raised by the Lisbon Treaty, or will it rather follow the GC’s more innovative line of a “purer” form of participatory democracy? -MH

The subject of EU transparency enjoys, it seems, never-ending attention from both EU civil servants and politicians, as well as academics. This time, the discussion was connected to developing rules and practices in the related areas of archiving and classification. Archivists, transparency specialists, and academics were invited for an exchange of views that was wide-ranging both in terms of substance as opinion.

Prof. Deirdre Curtin from the University of Amsterdam, in her talk invited the audience to look beyond the nitty-gritty discussions on details of the access to documents regime to consider its underlying dynamics and purpose. She voiced her concern over the lack of transparency in the emerging field of Council cooperation in security matters, where she and one of her PhD reseachers, Vigjilenca Abazi, have earlier criticised the system of document classification. Although secrecy is in certain cases indispensible, European institutions, including the Court, should be citizen-oriented, rather than institution-oriented, if they are to are to improve their democratic credentials.

Dr. Daniel Naurin of Gothenburg University presented his view on the functional mechanism connecting transparency to democracy using a parsimonious presentation containing six criteria of a well-operating democracy. These included not only transparency but also publicity, a phase of negotiation and of debate, and information concerning the process of legislation and its outcome and rationale. Based on his interpretation of current practices, he concluded that Council transparency fails where national governments succeed to create more democracy, because of the absence of a “democratic infrastructure”.

Dr. Stéphanie Novak (Hertie School of Governance) and dr. Gijs Jan Brandsma (Utrecht School of Governance) presented interesting papers concerning respectively the conceptual links between transparency and efficiency, and the role of inter-institutional information exchanges. These contributions highlighted the complex nature of transparency mechanisms, adding nuance to the received wisdom that transparency always decreases efficiency, or leads to shifts in power relations.

Further interesting contributions came from civil servants of the Commission and Council and EP secretariats, who clarified the current rules and their functioning, a painted a generally positive image of the development of public access over time. This positive tone was somewhat distrupted by a highly critical presentation of dr. Päivi Leino (Helsinki University), who found instances of statements going against Court judgements, a lack of administrative service-mindedness, and the virtual absence of openness in the area of EMU, in spite of rhetoric suggesting the opposite. In all, she found ample ground to conclude that especially the Council did not take its democratic obligations seriously in its interpretation of the transparency provisions.

The various presentations and subsequent debate unveiled a substantial range of opinions, ranging from quite satisfied and optimistic to highly critical. Furthermore, the seminar once again made clear how many approaches to transparency and public access are possible, providing a palet of different insights: rights-based, empirical, conceptual mechanisms-oriented, practical administrative, or linked to the fundamental principle of democracy: transparency, in the EU as elsewhere, is a controversial phenomenon with many interfaces.

Full details about the seminar can be found here.

-MH

The workshop is introduced as follows:

“Transparency is everywhere, or at least talk of it is everywhere. The mainstream view is that transparency furthers accountability and offers an antidote against corruption, both in the private and the public sector. It is not any specific right or principle, rather a feature of institutions embedded in the ideal of open society and often considered a requirement for efficiency and good governance. As essential to guarantee authority and effectiveness of rules, but also democratic participation, it is fundamental to assure obedience to the law and trust in institutions. Conversely, the lack of transparency might contribute to arbitrary power. Does the introduction of ICTs higher the quality of epistemic processes and outputs into the legal and political system? Does greater transparency of the network, e.g., through e-government tools, lead to increased participation, more active and responsible citizen involvement in decision-making, on local, national and supranational levels? What impact does web 2.0 technologies have? What could be the effects of information overload in the long run?

“This workshop offers a meeting point for scholars eager to share their findings in the field, enhancing comprehension between different approaches to law. The first Special Workshop Legitimacy 2.0 was held at the 25th IVR World Congress. This second meeting follows up the broad agenda that investigates the impact of ICTs in political and governance processes that seem elusive to be framed into the traditional theoretical settings based on legitimacy, normative authority, enforcement, nature of norms etc. The aim is to integrate the current state of the art with the toolkit of the analytical and normative perspectives of legal and political theory.

“The best papers will be selected and published in revised form. An Open Access Publication will make the most interesting data readily available.

“Guidelines for abstract submission

“Abstract proposals should be 350-500 words in length. Please submit your proposals through the congress website at: http://www.ivr2013.org/hotsite/english/work.php.

“Preferably in RTF or Microsoft Word (doc).
The deadline for abstract submission is February 28, 2013. All proposals will undergo peer review and notifications of acceptance will be sent out by March 15, 2013. Paper submission deadline is June 30, 2013.
Patricia Mindus: patricia.mindus@filosofi.uu.se
Andrea Greppi: agreppi@der-pu.uc3m.es
Massimo Cuono: massimo.cuono@unito.it”

For more information, click here.

Issues of integration, especially of economic integration, and the attached debate on national sovereignty are ranking high among the EU’s perceived transparency gaps these days.

With integration under pressure, markets and civil society nervously follow the news. The UK’s current lukewarmness towards the European project and considerations to rephrase the terms of its engagement are one good example. This week, the European Ombudsman riposted the Commission for refusing to disclose a report assessing the access of UK citizens to fundamental rights stipulated in the European Charter of Human Rights (ECHR), FOIANet reports. The Ombudsman was quoted stating:

In view of the importance of the documents concerned for the rights of EU citizens, and the fact that the Commission failed to engage constructively with the detailed analysis put forward by the Ombudsman, this constitutes a serious instance of maladministration.

So far, the Commission has not come up with a response to the Ombudsman’s report, to the detriment of the requesting party, the NGO European Citizen Action Service.

 For the full article, click here.

By Maarten Hillebrandt

A few weeks ago, the European institutions were shaken by a series of events which, at first sight, could constitute the plot of an institutional thriller. On 16 October, after an investigation into allegations of corruption conducted by the European Anti-Fraud Office (OLAF), the Maltese Health Commissioner John Dalli was asked to resign. The European watchdog acted on a tip from the tobacco producer Swedish Match, and its Director, Giovanni Kessler, called it a “classic” case of lobbying-turned-into-corruption. Undisclosed sources suggest tobacco interest beyond the Swedish producer may be implicated. When the Head of OLAF’s Supervisory Board, Christiaan Timmermans, stepped down within a week after Dalli’s resignation, this further added to the confusion. As an anonymous MEP stated in the EUobserver “There is a feeling that there is something politically delicate for the Commission in this whole business”.

Dalli’s fall has occurred in the context of a sensitive political dossier attracting the attention of both corporate and public health interests: a draft anti-tobacco law. The opacity which characterises the affair has already led it to be called ‘Dalligate’, and has plunged Commission President Barroso into a battle on two fronts: one with Dalli who seeks to clear his reputation; another with the European Parliament (EP), which wants to establish the facts before formulating its own response. Both ‘fronts’ claim a right to know. Based on the facts of the affair and its legal context, I argue that the principle of transparency is unduly restricted right where it is most needed: in the EP’s exercise of parliamentary oversight.

Facts and rumours

The publicly available version of the facts concerning Dalligate is as follows. In March 2012, contacts were established between the Maltese businessman Mr Zammit and the tobacco firm Swedish Match. They discussed the possibility of setting up a meeting between Swedish Match and Dalli. Zammit would be paid a fee of €60 million if he succeeded in persuading the Commissioner to change the draft directive. It remains unclear which of the two parties approached the other; it is also unclear whether Swedish Match acted of its own accord, or whether other tobacco firms were also involved. What is certain however is that Swedish Match reported the case to the Commission in May.

An internal investigation was started shortly thereafter. At the end of July, Barroso first met Dalli to discuss the matter. Months later, on 16 October, Barroso had another meeting with Dalli, at which he asked him to resign. Barroso had two witnesses present at that meeting who testify that Dalli resigned on the spot: the DG of the Legal Service, as well as Barroso’s Chef de Cabinet. OLAF subsequently forwarded the investigative report to the competent Maltese judicial authorities which is investigating the matter further and may initiate criminal proceedings.

These initial events sparked off a chain of reactions. Barroso immediately entrusted the Health portfolio to Vice-President Šefčovič, while preparatory work on the tobacco directive was put on hold. On 22 October, Dalli defended himself in a letter to the EP, denying all allegations. Two days later, he claimed to have been forced to resign, and blamed Barroso for failing to inform him of the grounds of the accusation. He furthermore categorically denied having been offered “…any money by anyone to alter any issue that I have been responsible for directly or indirectly…”. That same day, Timmermans stepped down as Head of OLAF’s supervisory board. The initial reason provided, failure to properly inform the Board, was later replaced by undisclosed ‘personal reasons’.

Meanwhile, the EP took steps to obtain the OLAF report. Michael Theurer, the liberal chairman of the EP budgetary control committee, declared that a confidential meeting with OLAF Director Kessler did not clear up the situation. In the meeting, Kessler provided only hypothetical scenarios, refusing to go into the actual facts of the investigation. The Socialists and Democrats group (S&D), have also increased pressure on the Commission, holding that “[t]here must be a general clarification and it must come from Kessler and Barroso himself”, and the EP’s President Martin Schulz has demanded an explanation from Barroso. Other MEPS also insisted on full access to the report.

Barroso’s response to the affair has been to attempt to control the damage to the Commission. In a letter to Dalli, he asserted that Dalli’s decision to resign was irrevocable, and rebuked him for damaging the Commission by making insinuations when he could have reacted to OLAF’s investigation at an earlier time. Through his spokesperson, Barroso further maintained that access to the dossier could not be provided: “It’s not a question of the Commission refusing access to the report, it’s a question of the Commission fulfilling legal obligations.”

Dalli and his right to know

Barosso’s formalistic line of reasoning warrants closer consideration in light of the claims for access brought up by Dalli and the EP.

First, there is Dalli’s claim that he should have been notified of the grounds of Barroso’s request for him to resign. A parallel can be drawn with the Franchet and Byk affair. Mr. Franchet and Mr. Byk were top civil servants working at Eurostat, who became implicated in an OLAF fraud investigation in 2001. They requested access to the investigative report and to related communications based on Regulation 1049/2001 on public access to documents. While they received the investigative report soon after it was completed, certain annexes were excluded, and they were not granted access to the additional documents requested.

The Franchet and Byk case on access to documents that followed established  a blueprint for the access rights of implicated parties in an EU internal investigation. The Court pointed out that the applicants’ reliance on 1049/2001, a Regulation on public access, requires an erga omnes reasoning, meaning that the applicants be treated in the same way as any other person. Nevertheless, the Court held that OLAF had not respected its duty to consult with the relevant national authorities on whether disclosure would be problematic. Furthermore, the Commission failed in all but one instance to establish a specific, reasonably foreseeable risk pertaining to the investigation, in disclosing the documents, as 1049/2001 requires. If the Court would also have found an overriding public interest in disclosure, it might have required all of the requested investigative documents to be made public; however, it did not.

In a subsequent case, Franchet and Byk sued the Commission for having breached the presumption of innocence. Although many of the case’s facts differed from that of Dalli, there are some parallels. Dalli decided to resign of his own accord, to avoid being fired. This allowed the Commission to circumvent a conflict between the required presumption of Dalli’s innocence and the political tenability of his office, nor did it have to consider disciplinary action –  two issues that led the Court to chastise it in the Franchet and Byk case. Of course, the extent to which Dalli resigned freely (rather than being forced to) is a separate matter that remains open for debate. What is important to note here, is that, as the Franchet and Byk case law indicates, Dalli can secure access to the relevant documents even without an invocation of Regulation 1049/2001, relying merely on his right to be heard guaranteed in the Terms and Conditions of Internal Investigation (Art. 4) and his right to an effective defence in the European Charter of Fundamental Rights (Art. 48).

Parliamentary oversight: making institutional democracy work

Although Dalli’s legal position seems sufficiently protected, the overarching problem of Dalligate is of course the fact that those who were not directly involved don’t know what exactly happened. Did Dalli, OLAF, or the Commission at any point overstep their prerogatives? Arguably, Dalli’s position is a matter for the Maltese Court, if and when a case gets to it. Beyond the individual legal position of Dalli is the question of institutional accountability.  In an EU that values democratic checks and balances highly, it seems crucial that the EP should be informed about the affair as completely as possible and in a timely manner in order to prevent an accountability gap.

OLAF spokesman Johan Wullt recently expressed the view that it may be possible to grant public access to the report. In his view, a disclosure is possible where an overriding public interest exists, as stipulated by Article 4(2) of Regulation No. 1049/2001, provided that the provisions of Regulation No. 45/2001 on the protection of privacy are respected. It can be quite convincingly argued the resignation of a Commissioner, certainly where it occurs under controversial and contested circumstances, amounts to such a public interest. Equally, it seems appropriate that the privacy of the parties involved be interpreted narrowly given that what is at stake are possible power abuses occurring within the exercise of a public office. Furthermore, the EP acts as an institution that legislates on the basis of proposals prepared by the Commission. It is therefore imperative that it has full access to any information that could affect the Commission’s legislative proposals. No matter how the accountability and democratic relations are conceived, the EP should be informed as directly and exhaustively as possible about whom the Commission hires and fires – a point all the more pressing when it concerns irregularities of the nature that Commissioner Dalli stands accused.

An interpretation that protects the investigation that is still ongoing in Malta is more realistic. Until the case has been closed, the Maltese judiciary will not provide access to the file. In Franchet and Byk the Court took a line that to some extent supports this interpretation, by finding that the ‘widest possible access’ to documents was not undermined by non-disclosure of investigative documents so long as procedures at the national level were carried out within a “reasonable period”. In the case of Franchet and Byk, the Court found more than six months to be a reasonable period; hence, the EP might need to be patient before it is able to get access under Regulation No. 1049/2001.

Yet the Court indicated another line of reasoning by which direct parliamentary access would be possible – ironically it did so in exactly the case that the Commission cites to support its view that its hands are tied. With OLAF’s Franchet and Byk investigation finalised, and proceedings ongoing at the national level, the Court held that the Commission was free to share the details of the investigation with the EP without being obliged to consult with the parties involved, since it had not drafted the document itself, and it did not adversely affect the position of the investigated parties. This turns the question of immediate parliamentary access into one of privileged parliamentary access as a matter of inter-institutional cooperation rather than of public access under Regulation No. 1049/2001.

What does all of this mean for the principle of transparency in the EU? In legal terms, public access may well be problematic. Yet, the Commission, contrary to what it argues, is in fact free to provide the EP with all the Dalligate-related documents that it requires, including OLAF’s investigative report. Whether the Commission is willing to do so in practice is another question. The EP should flex its muscles and insist that the Commission does so if it takes its role as an accountability forum seriously. Dalligate is nothing less than a test of its real world powers of parliamentary oversight.

Maarten Hillebrandt MSc is a doctoral researcher at the Amsterdam Centre for European Law and Governance. His personal page can be accessed here.

This short article was originally posted on the blog of the Amsterdam Centre for European Law and Governance (ACELG).

Kadi is back in Luxembourg and with a vengeance! The timing is interesting both for the case itself and more generally for highlighting the use of secret intelligence and evidence to justify detention and other sanctions.

By Deirdre Curtin

To start with the case itself, the oral hearing of the new Kadi case (Kadi 2) took place in Luxembourg earlier this week before the Court of Justice of the EU (CJEU). After 11 years on a UN freezing of assets list, Mr. Kadi was actually de-listed by the UN Al Qaeda Sanctions Committee some 10 days prior to that. The immediate issue is of course one of the (continuing) admissibility of the appeal. Is there in fact still an interest in the CJEU adjudicating the case in these new and changed circumstances? The appealing Union institutions, the Commission and the Council, (supported by a total of 13 Member States intervening in the procedures) argued during the oral hearing that the interest is in having “the law” authoritatively clarified on the matter. Mr Kadi can argue that de-listing did not deprive him of his status as a victim of severe sanctions for an 11 year period. If the CJEU reaffirms the lower court’s annulment of the Commission’s regulation (amending the underlying Council Regulation) in this particular case then presumably Mr. Kadi will not be re-listed by the EU (which is what happened after the previous annulment by the CJEU in 2008 in Kadi 1).

Almost irrespective of what the Court actually does in this particular case, this long strung out litigation (together with the many other sanctions decisions challenged before the Luxembourg courts in recent years and still pending) is of much wider structural significance in terms of the secrecy culture that is entrenched (and inter-locked) at all levels of government, including increasingly the supranational level. This structural issue is likely to continue to come before the Courts in Luxembourg in a variety of ways given the Union’s expanded practice in the fields of internal and external security (on the supranational context of this more general security landscape, see my 2011 lecture Top Secret Europe)

The core issue that I want to raise here is whether governments at all levels of governance (national, supranational and international) can continue to deny courts (and in particular the CJEU) access to highly classified information so that they can provide judicial review on the merits. Will the CJEU more generally and definitively establish the limits on EU executive power (Commission and Council but potentially also applying to other actors in the future, such as Europol or the European External Action Service) in terms of secrecy and refusal of access to classified information shared with other actors both nationally and internationally (and vice versa)? Or at least provide some more substantive guidance in this respect that relates to the underlying facts in the case before it?

To go back to the facts, Mr. Kadi was listed by the UN originally in 2001 on the basis of (presumably) ‘top secret’ classified intelligence provided by one or more members of the Security Council. But the problem seems to be actually more acute: as the UN Special Rapporteur on human rights while countering terrorism pointed out in 2010, the UN Sanctions Committee taking the listing decision may itself not ever have full access to the classified information held by the State seeking the listing. In other words, the practice of listing individuals by the UN may be serially taking place on the basis of secret and undisclosed intelligence.

In line with standard security practices and the originator control principle (ORCON), originators of intelligence material in any event retain control over whom this information is revealed to. This means in practice that such (highly) classified information will not be revealed to those listed or their lawyers but also not necessarily to the UN itself nor to regional organizations such as the EU who take their own (derivative) listing decisions.

When it comes to the EU implementing UN lists of terrorist suspects, it too does so without ever having fully seen or possessing all the evidence in question to support that decision with regard to named individuals. If it does not possess that evidence it is also unable to submit it to the Court in the event of a legal challenge and despite being ordered to do so by the Court. This is a structural problem for the Court that it may not be able to avoid in the Kadi 2 case.

When it comes to intelligence information supplied by EU Member States in the context of what are termed the autonomous EU lists (e.g. France in the earlier case involving the PMOI) the situation is different at least in theory. The Courts can demand to receive access to the classified information that led to the EU listing but here too –and despite the fact that the Council actually possesses the information in question- they will not necessarily receive it. This is because of the operation of the principle of originator control as a matter of EU rules as well as specific national rules.

In the PMOI case for example even though the Council had (most of) the actual information in its possession and it had in fact been distributed to the other Member States, France could – and did – refuse access to the Court. It could do so because of the application of the principle of originator control and the fact that its national law required it to do so in the circumstances.  The Council subsequently produced one ‘confidential’ document to the Court that was not provided to the PMOI (as well as other non-confidential documents) but could not produce the documents France refused. It is arguable that at the very least it is the Council itself that needs to assess whether the need for ‘confidentiality’ claimed by a Member State (France) is genuine and sufficient. Even then, it is up to the Court to review in full the exercise of the Member State discretion. It can only do so if it is given access to the confidential documents in question.

There is clearly a Catch 22 situation here: national and third party classification rules and systems may result in the courts simply not being given access. This constitutes the bulk of classified information being shared at the Union level, subject to the originator control principle. The easier question is whether the Council and other Union institutions and agencies can deny the Luxembourg Courts access to classified information that requires a security clearance (confidential or above) that has been actually classified at the supranational level (European Union Classified Information)? Here it seems fairly obvious that they cannot, even if they have used other sources in drawing up that document (the principle of derivative classification).

If the Court requests such EU documents/information as part of ongoing judicial proceedings then Union institutions (and agencies) cannot plead their own internal rules of procedure and decisions based on them to refuse access to the Court. In practice, the General Court is particularly active in, as a “measure of inquiry” (Article 65 of its Rules of Procedure), seeking and receiving access to EU classified information that is denied to the applicants and other parties and in keeping that information confidential from the other parties to the proceedings (a type of de facto closed material procedure).

Access to classified information is the key in terms of effective accountability also in legal terms by a judge or tribunal. The question is by whom and how. What worked ultimately in the UN system after 11 years in terms of results (de-listing) is the fact that under the new special procedure instituted by the UN in the aftermath of the first Kadi judgment the (newly created) Ombudsperson was able to negotiate (some) access to classified information in individual files. On this basis she (Judge Kimberly Prost) makes recommendations to the UN Committee in question based also it seems on access she has obtained to classified intelligence evidence by States supporting the original and continued listing.

Despite an ongoing struggle by the Ombudsperson to actually obtain access to classified information, a process that she has negotiated bit by bit and with some success with a limited number of individual states who are frequently an object of listing petitions (for the latest list of these States and types of agreements, see here), she has already a considerable track record of recommending and obtaining de-listing decisions. She produces bi-annual reports and the success rate is certainly impressive: in a total of 21 completed cases by the Ombudsperson (since mid-2010) only one request for de-listing was denied by the UN Sanctions Committee (one was withdrawn and one is still pending). In a total of 18 cases the decision by the UN Committee was to delist (individuals or entities; one list was ‘amended’).  Mr Kadi is the latest to be delisted to date.

Yet the issue of access to classified information remains absolutely critical and by no means a foregone conclusion in the UN context. In the words of the Ombudsperson herself, in her latest report to the Security Council: “the challenges related to access to classified/confidential information remain pressing and significant… further progress is urgently needed…lack of access to confidential/classified information has been a concern in at least four recent cases.”

As we have seen, the challenges related to access to classified/confidential information are equally omnipresent in the EU system where the CJEU has far-reaching judicial powers in individual cases brought before it and the responsibility to ensure effective judicial protection. The crucial question that the CJEU is going to have to sooner or later address is: what procedural system can it for the future devise at the level of the supranational judicial system to deal with the issue of classified material being viewed by persons with the appropriate level of security clearances (either members of the Court itself or security cleared ‘special friends’ of the Court as in some national systems)?

Or should the CJEU institute –formally- a closed material procedure? Article 79 of the new amended rules of procedure of the CJEU that will enter into force on 1 November 2012 enables cases to be held “in camera” for “serious reasons related, in particular to the security of the Member States…” and without publication of such oral proceedings. At the same time holding the oral part of legal proceedings “in camera” is not the same as laying down a specific procedure that enables (member of) a court (security cleared) or a type of ‘special advocate’ to access classified information and keep it confidential from the applicants but nonetheless act on their behalf. Yet, in Canada reliance on expert judges was found to be constitutionally insufficient and in the UK reliance on a regime of ‘special advocates’ has been challenged and narrowed by various requirements that demand the ‘gist’ of the allegations to be disclosed.

Luxembourg is being closely watched – not only in Brussels and national capitals but also in New York and perhaps closest of all – in Washington. At the hearing in Luxembourg in Kadi 2 this week, a number of lawyers from the US State department in the courtroom were present, observing the proceedings and listening keenly to the exchanges between the judges and the lawyers for the parties to the proceedings. They too understand that the case can have much wider implications than just for the future possibilities of Mr. Kadi to initiate further legal proceedings (seeking damages or otherwise).

Beyond secrecy, this case raises very squarely the issue of accountability of executive power in the composite legal and political orders of the EU. It shows the manner in which national executive power intertwines with supranational executive power and that in turn with international /global executive power and the risk that it may ultimately be ‘unbound’ in the absence of accountability forums who can adjudicate in individual cases on the basis of all the information (see further my book Executive Power in the European Union from 2009). The Court of Justice holds an important key in this sense and it will be revealing to see how it will handle classified information in the wider context of effective judicial protection.

What is however missing is an open public debate that reaches beyond the (governmental) insiders’ interest in preserving the existing system come what may (thirteen Member State governments lined up with the Commission and the Council against Mr. Kadi). There is –sadly-virtually no space for an open debate on what broadly constitutes the public interest. This is not necessarily consonant with the interest of the executive power itself at whatever government level it is operating.

There is of course in any democratic society a need for necessary secrecy on security related matters but it is not ‘unbound’: it must be limited and made accountable in one form or another. Time will tell whether a tipping point has been reached in Luxembourg at least with regard to the use of secret intelligence by the supranational executive power in a manner that deprives individuals of their rights to due process and effective judicial protection. The challenge is to find a procedural way of balancing claims that intelligence sources and methods must be kept secret in a less rights invasive manner than the use of secret evidence in non-criminal procedures. The Luxembourg courts, unlike the UN Ombudsperson and the UN Sanctions Committee, have the power to provide a judicial remedy to a person who has been listed, perhaps on the basis of flawed secret intelligence used as evidence to justify the listing. For now, all eyes will continue to watch Luxembourg.

Professor Deirdre Curtin is Director of the Amsterdam Centre for European Law and Governance. To view her personal page click here.

At the Dooge lecture, professor of European governance Helen Wallace goes back to the committee’s work which ”was made to seem as boring as possible” but in her opinion marks a watershed in the history of European integration. She praises the dexterity and expediency of the committee and its chair, but also argues that its working method marked the end of an era. She compares the SEA and Maastricht Treaty with the language andobjectives of more recent European Treaties, and concludes by addressing the UK’s recent stance in the process of European integration. http://www.youtube.com/watch?v=pAng6aga_Qw -MH