Balancing Act

Access to information

In August 2004, Belgian police raided the house and office of Hans-Martin Tillack, a Brussels-based reporter for German magazine Stern, in what his lawyer claimed was an attempt to reveal the identity of a whistleblower. This raid, although exceptional, is emblematic of challenges facing EU correspondents, who say they face hurdles in accessing documents, covering secretive trade deals, and investigating officials’ expenses.

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Transparency is essential for democratic accountability and for journalists to perform their duty as a watchdog. Despite its mammoth communications apparatus, the EU is often accused by citizens as well as civil society actors of being complex, opaque, and distanced from the European people. The complexity of the EU institutions and decision-making process makes transparency a challenge in Brussels, but the policy of openness also depends on the approaches of member states. The Scandinavian tradition of open government contrasts with the obsession in France and the U.K. with executive privilege or state secrecy. With the exception of Cyprus and Luxembourg, which have draft laws, all member states have adopted freedom of information legislation even if the law is not necessarily enforced properly. According to Transparency International, only Luxembourg, Romania, Slovenia, and the U.K. have legal frameworks for protecting whistleblowers that are considered to be advanced. In Italy, public bodies fail to respond to 73 percent of freedom of information requests, a 2013 study by transparency group Diritto Di Sapere and Access Info Europe found. These laws can suffer a backlash when governments consider them too intrusive: The Conservative government in the U.K. started a cross-party review of the country’s Freedom of Information Act in July 2015 which, according to the Guardian, is likely to be viewed as an attempt to curb public access to government documents.

Hans-Martin Tillack, of Stern magazine, pictured left during a raid on his office by Belgian police after reporting on allegations made by a whistleblower. (AFP/Tierry Monasse)
Hans-Martin Tillack, of Stern magazine, pictured left during a raid on his office by Belgian police after reporting on allegations made by a whistleblower. (AFP/Tierry Monasse)

Access to EU institutional documents is established in the treaties and by the Court of Justice. Article 42 of the Charter of Fundamental Rights states that “any citizen of the Union, and any natural or legal person residing or having its registered office in a member state, has a right of access to European Parliament, Council and Commission documents.” A European ombudsman hears individual complaints and can investigate transparency issues.

Have such commitments turned Brussels into a transparency paradise? Journalists covering the EU’s budgets, trade deals, and draft directives find its commitment to transparency has a limit. Despite being responsible for handling a budget of about €145 billion a year, the EU appears reluctant to fully disclose its workings.

“Compared to member states, EU institutions are average in terms of transparency,” Access Info Europe Director Helen Darbishire said. “Worse than Sweden, better than Spain.” There are clearly no-go areas. “Key documents remain off limits or are not even registered, as EU institutions brandish the traditional arguments of diplomacy, trade secrecy, national security, and corporation or personal privacy,” Darbishire told CPJ. EU officials are particularly reluctant to give access to preparatory documents from the decision-making process. “They overuse the argument of personal privacy to refuse documents,” Darbishire added. “The information, for instance, on commissioners’ expenses only provides the total amount, with no details, on grounds of privacy.” A July 2015 for global civil society organization Open Knowledge found transparency on public money varied depending on which EU authority was handling the funds.

The labeling of EU classified informationtop secret, secret, confidential, restricted—is serious business in Brussels. Many journalists and MEPs object to what they call a culture of over-classification, which places public interest documents out of reach. “Information on infringement proceedings, in case of breaches of EU law by a member state, is particularly hard to get,” Darbishire said. The EU human rights country strategies are not disclosed publicly, which makes it hard for press freedom groups and the European Parliament to apply a proper degree of scrutiny. Access to sensitive documents, particularly on external affairs and defense matters, is further hampered by the right of member states to refuse consent if the documents or information originate from them, or by the obligation to respect NATO security standards under a 2003 EU-NATO agreement. In January 2015, European Ombudsman O’Reilly revealed in a speech that she had been denied access to a report on Europol’s compliance with EU law because “the commission and the U.S. required Europol to obtain the permission of the U.S. authorities. The U.S. authorities have refused such permission to Europol.”

EU Observer journalist Andrew Rettman told CPJ, “The release of documents is also denied because EU officials simply want to avoid embarrassment or hide their double talk.” In a restricted document on EU-Russia human rights talks that he reviewed and reported on in 2010, Rettman found: “EU diplomats at the time said that it was classified to protect victims’ names.” But, he said, “The report also showed that EU officials think the talks amount to little, even though EU leaders say the opposite in public.” The EU did not react publicly to his claim.

Public interest groups and inquisitive journalists constantly fight to open up the system and prevent institutions from hiding documents from public view. For them, the challenge is to institutionalize transparency and make more documents available as a matter of routine so that checks and accountability do not depend on legal procedures, whistleblowers, and undercover journalism. Unconventional methods can help push the limits. In 2011, investigative reporters from British paper The Sunday Times posed as lobbyists and convinced four MEPs to accept payment to amend legislation, according to reports. This “cash for amendments” scandal led to the adoption in 2012 of a Code of Conduct obliging parliamentarians to declare outside interests (financial holdings, board membership, outside revenues). Transparency International has used these declarations of interest to create a database, part of its EU Integrity Watch project, to monitor potential conflicts of interest. The code, however, contains loopholes, and Transparency International has been advocating for stricter rules to allow greater monitoring.

Protests in Berlin against the Transatlantic Trade Investment Partnership. EU correspondents claim access to documents from trade negotiations is often restricted. (Reuters/Hannibal Hanschke)
Protests in Berlin against the Transatlantic Trade Investment Partnership. EU correspondents claim access to documents from trade negotiations is often restricted. (Reuters/Hannibal Hanschke)

Access to information also differs between institutions. “The Council of Ministers, which represents member states, is obviously difficult to crack open, but the European Parliament, contrary to common perceptions, is less cooperative than the commission in sharing information on itself,” Alison Coleman, of the Transparency International EU office, told CPJ. There can be defeats, too. In 2003, after the commission denied access to court documents related to the “Open Skies” commercial air transport between the EU and U.S., the International Press Association argued that the commission was obliged under its transparency commitments to provide journalists with access to documents submitted to the court. This right was rejected by the court in 2010.

International trade negotiations are an area where access is often restricted. The commission and council are secretive, not only because of concerns about strategies but because these negotiations often contain provisions that are politically sensitive. “The council refused to publicize the mandate of the commission in the [Transatlantic Trade and Investment Partnership] negotiations, which the Trade Commissioner did in part. Most states are dead set against transparency,” Le Soir foreign editor and EU affairs veteran Maroun Labaki told CPJ. As Andreas Maurer, a professor of European studies at Innsbruck University in Austria, underlined in a European Parliament think-tank document published in April 2015, MEPs have been complaining about the difficulty in exercising oversight without clear rules on how to access negotiation documents held by the commission and the council.

In a July 2014 judgment on a case submitted five years earlier by Dutch liberal MEP Sophia in ’t Veld against the council, the court instructed the European Commission to be more transparent. The court “has sent a clear signal that EU institutions cannot abuse the argument that negotiations of international agreements require documents to remain secret,” wrote Kostas Rossoglou, then-senior legal officer with European consumers union BEUC, in a July 2014 blog. “Although the court did not go as far as imposing disclosure as the rule, it has set out a certain number of conditions which must be met for the documents to remain undisclosed.”

Darbishire and Pamela Bartlett Quintanilla of Access Info Europe echoed this point in a July 2014 article: “The EU institutions have to work harder to justify why a particular document would be likely, ‘foreseeably and more than purely hypothetically,’ to cause harm.”

European Ombudsman O’Reilly has endorsed the campaign for greater transparency. In January 2015, she made 10 suggestions to the commission that covered common negotiating texts, greater proactive disclosure of Transatlantic Trade documents, and enhanced transparency of Transatlantic Trade meetings. “By following these suggestions,” she said, “the commission would ensure that the [Transatlantic Trade] negotiating process can enjoy greater legitimacy and public trust.”

The commission remains suspected by transparency advocates of discriminating in favor of corporate lobbies and against public interest groups by granting the former access to sensitive documents that it refuses to the latter. In June 2015, the Court of Justice rejected an appeal by advocacy group Corporate Europe Observatory (CEO) to force the commission to release documents, including meeting reports, emails, and a letter, related to trade negotiations with India. “The documents in question had already been shared with industry groups such as employers’ federation BusinessEurope but were deemed ‘sensitive’ and ‘confidential’ when access was requested by CEO in the public interest,” the advocacy group complained in a June 2015 press release. EU correspondents told CPJ their work was hampered by this two-tier system of access to information.

In 2003, the drafting of the Insider Trading and Market Abuse Directive, which the commission said would protect investors while preserving press freedom, led media professionals to call for a “journalist exception.” A similar concern was expressed in early 2015 against an EU Trade Secrets Directive which threatened to corral crucial business information and impose unspecified penalties over revelations, according to journalists and civil society organizations. “We want to be sure that its provisions will not intimidate journalists who investigate business and that there is a clear reference to the respect of the Charter of Fundamental Rights,” Guenaëlle Collet, European Broadcasting Union’s European affairs manager, told CPJ. The commission took great pains to rebut these fears in May 2015. “Journalists would be allowed to investigate companies, and corporations would not be able to hide information on matters of public interest, like health, the environment or consumers’ protection,” it stated.

“Information on Commissioners’ expenses only provides the total amount, with no details, on grounds of privacy.”
– Helen Darbishire, Access Info Europe

Press freedom groups are not reassured and, like Elise Lucet, the producer of the France 2 show “Cash Investigation,” whose online petition against trade secrets gathered 450,000 signatures by July 30, 2015, they continue railing against the vagueness of draft provisions. Some journalists with which CPJ spoke highlighted the response to the 2014 LuxLeaks stories, which exposed a massive tax engineering system put in place in Luxembourg in favor of multinational corporations when current European Commission Chair Jean-Claude Juncker was prime minister. In April 2015, a Luxembourg court indicted French journalist Edouard Perrin, of Paris-based production company Premières Lignes Télévision, who broke the LuxLeaks story for “Cash Investigation,” according to reports. A statement from the Luxembourg prosecutor’s office alleged that Perrin had not limited himself “to gathering information offered by the accused … and would have played a more active role in the committing of these offenses.” His production company responded with a statement that said such investigations were in the public interest and “in accordance with the role of journalists as watchdogs of democracy as acknowledged by the European Court of Human Rights.”

A reform of the transparency model is not expected during the current commission which, a number of journalists and transparency advocates told CPJ, has proven to be “more restrictive than its predecessors and more determined to keep a tight leash on the EU information machinery.” The European ombudsman and a number of MEPs and rights groups appear determined to keep advocating for more transparency. In May 2015, O’Reilly opened a new front by challenging the lack of transparency of the so-called trilogues: the secretive haggling between the commission, council, and Parliament on future legislation. “Trilogues are where the deals are done that affect every EU citizen,” she said. “European citizens, businesses, and organizations should be able to follow each stage of the law-making procedure.”

Brussels hosts an impressive number of lobbyists, public affairs companies, lawyers’ offices, and interest groups, which play an often decisive role in the drafting of EU legislation. Although, as the Guardian’s Europe editor, Ian Traynor told CPJ, “Some are useful sources and help journalists circumvent the commission’s silences,” they have mostly operated away from public and media scrutiny. A voluntary lobby register introduced under the Barroso commission in 2011 failed to institute a reliable and accountable system. Under pressure from civil society organizations, the Juncker Commission tightened the lobby system with a transparency register that banned meetings of senior representatives—commissioners, cabinet heads, and directors-general—with unregistered lobbyists. The ban covers about 300 people out of a staff of 33,000, many of whom are key contacts for lobbyists. According to the Alliance for Lobbying Transparency and Ethics Regulation, a coalition of about 200 nonprofits, academics, and unions, the measures did not go far enough. The ban did not cover the council, where major decisions are made, and excluded casual contacts. “The level of detail provided currently to the register, and its limited capacity to monitor and sanction, is simply not enough,” O’Reilly said at a May 2015 conference in Brussels.

These weaknesses mean information on the EU’s decision-making process is hidden. “Campaigners, journalists, and all EU citizens have a right to know who is lobbying our decision-makers, on which dossiers, and how much money they spend on lobbying,” said Darbishire, of Access Info Europe, in January 2015. “Full transparency is essential for getting a true picture of lobbying in Brussels and for ensuring balanced input of the views of all stakeholders.”

Since January 2014, all EU institutions have been obliged to introduce internal whistleblowing rules. In March 2015, however, the ombudsman warned that only two, the commission and the Court of Auditors, out of nine institutions had adopted these rules. An effective EU whistleblower system would work only if all member states had similar rules at the national level. This was the sense of a 2013 European Parliament Resolution but, in a June 2015 Parliament hearing, a commission representative announced that a general directive on whistleblowers would not be drafted because of the difficulty in harmonizing 28 disparate legislations, a challenge the commission does not seem afraid of when drafting a trade secrets directive.

The commission has had a whistleblowing system in place since 2004, but the number of cases has been few: five per year, on average, according to anti-fraud agency OLAF. Rights groups have questioned whether this is because the commission is a model of virtue or because its functionaries are scared of being penalized or sidelined if they reveal wrongdoing. In the past two decades, Brussels has had its quota of controversies in which institutions have allegedly attempted to gag or discredit suspected whistleblowers. A case reported by the EU Observer in November 2014 involved corruption allegations at EULEX, the rule of law mission in Kosovo. Maria Bamieh, a British prosecutor seconded to the EU mission, had filed internal requests to start an investigation but was dismissed after being accused of leaking documents to Pristina newspaper Koha Ditore.Bamieh and the paper denied the accusations. In August 2015, EULEX requested a gag order to prevent reporting on proceedings after Bamieh filed a case at the London Central Employment Tribunal, according to reports, The request, which at the time of writing had not been ruled on, was denounced by Transparency International Kosova as an act of intimidation.

But do EU accredited correspondents who, with more than 900 members, form the third largest press corps in the world after London and Washington, need whistleblowers to cover Brussels? The EU has a huge communications machine and prides itself on being open to the press … to a point. “A huge number of documents have been made available,” Le Monde’s Stroobants told CPJ. Aidan White, executive director of the Ethical Journalism Network, added: “Things have changed for the better. Twenty years ago, the EU was a closed body.”

Journalists cover an EU press conference in Brussels in December 2014. Correspondents say daily press briefings are being replaced by broadcasts from the EU information channel. (AFP/John Thys)
Journalists cover an EU press conference in Brussels in December 2014. Correspondents say daily press briefings are being replaced by broadcasts from the EU information channel. (AFP/John Thys)

There is no strong tradition of investigative journalism in the Brussels press corps, but “journalists do get things,” Darbishire told CPJ. Journalists wanting to follow in the footsteps of legendary U.S. investigative journalist I.F. Stone and who are ready to devour public documents, read obscure committee hearings, and attend byzantine debates can extract meaningful public interest information. Relying on official EU data enabled investigative journalists, for instance, to document a number of cases of fraud in European Commission regional aid funds.

The EU communications machine has become more defensive, according to reporters who spoke with CPJ. “Gone are the days when EU correspondents shared the visions of the EU officials and saw themselves as torch carriers of a supranational project,” a nostalgic former director-general of the commission told CPJ in confidence. Referring to the commission, Le Monde correspondent Stroobants told CPJ, “When you ask for information or documents which might contradict the official narrative, the gates fall and spokespersons do not really help you.”

“Things have changed for the better. Twenty years ago the EU was a closed body.”
– Aidan White, Ethical Journalism Network

Alexander Winterstein, deputy chief spokesman of the Spokesperson’s Service of the European Commission, told CPJ the service was “committed to providing all available information to all accredited journalists—in full transparency and without any distinction.” Winterstein added that all requests are answered “comprehensively, truthfully and timely,” and when information is not immediately available, a reply confirming that the request is being investigated is sent to the journalist.

The service encourages background briefings and the service has created the role of a cabinet communications adviser to improve its ability to do this, Winterstein said. The service also holds regular meetings with the International Press Association in Brussels to improve links between communications advisers, political cabinets, and the press.

Some journalists suggested the EU was trying to circumvent the press. The midday briefings have been replaced by live broadcasting via the Internet or the EU’s information channel, Europe by Satellite. “The briefings have been nullified,” Le Soir long-time EU correspondent and current foreign editor Labaki told CPJ. “They have been turned much more into a sort of PR exercise instead of a privileged moment where professional journalists can ask probing questions and spokespersons can talk ‘off the record.’” The International Press Association, which represents EU accredited correspondents, denounced it as a trick to bypass correspondents and weaken their role. As a result, a number of “off-the-record” background meetings have been restored, but for accredited press only.

Accreditation also dictates levels of access for the press. Accreditation is for professionals living close to Brussels, whose main source of income is from journalism and whose main beat is the EU. Temporary press access badges are available for non-accredited professionals. Despite these limits, “Brussels remains quite open for international correspondents, compared to Paris or Washington,” the Guardian’s Traynor told CPJ. He added that journalists can also rely on leaks. “If someone at the commission or the council refuses to give you the information, you can most often find it among representatives of 28 member states which have an interest in talking to you.”

“The briefings have been nullified. They have been turned much more into a sort of a PR exercise.”
– Maroun Labaki, Le Soir

The use of whistleblowers and leaks can cause problems for the press. The Tillack case remains, as The Washington Post’s Glenn Frankel wrote, “a cautionary tale.” Tillack, who wrote critically on the EU for Stern magazine, was accused by the EU’s anti-fraud office OLAF of bribing an official to gain access to confidential documents, according to reports. Belgian police raided the EU correspondent’s home and office, removing files and computers to search for evidence of the bribe, which Tillack denied offering. Tillack’s lawyer, Christoph Arhold, claimed in the September 2006 edition of The European Lawyer that OLAF wanted to use the raid to identify the source of the leak. Tillack took his case to the European Court of Human Rights, which ruled in November 2007 that Belgium had violated Tillack’s right to freedom of expression and ordered it to pay moral damages and legal costs. The court found that OLAF had no factual basis for the bribery accusation.

In spite of the positive judgment, the case had a chilling effect. The Berlaymont—the building hosting the commission at the heart of Brussels’ European district—is not, as Traynor described to CPJ, “the Kremlin,” but the history of EU correspondence includes a number of cases in which journalists during the Barroso era have been subjected to reprimands and reprisals from touchy officials, some EU journalists claimed in conversation with CPJ. “The [commission] hates that correspondents disseminate information obtained on the sly from the inside,” Lorenzo Consoli, EU correspondent for Italy’s TMNews and former president of the Brussels-based International Press Association, told CPJ.

Consoli and others raised the case of Jean Quatremer. The correspondent of Paris-based daily Libération andauthor of a widely followed blog, Les Coulisses de Bruxelles (Backstage Brussels), claimed he was boycotted by the Barroso commission between 2005 and 2014. He said he was not invited to informal briefings and was passed over while trying to ask questions in press conferences. In a right of reply to Libération in October 2008, a commission spokesman brushed away the allegations. But a policy of favoritism and payback seems to persist in Brussels, according to journalists who spoke with CPJ. “If you publish things they really do not like, they will tell you they are unhappy or they will freeze you out of privileged meetings with top officials,” Stroobants told CPJ. In an email to CPJ, the Spokesperson’s Service of the European Commission denied claims that journalists are obstructed in their work, or that a culture of favoritism exists.