The European Union and State Secrets: a fully evolving institutional framework

Many contemporary debates surround the issue of the treatment of confidential information and state secrets both in the United States (1) and the European Union (2) and questions have also been raised over the WikiLeaks phenomenon. It therefore seems timely to try to shed some light on the way confidential information is handled by the European Union institutions, especially since we now have the entry into force of the Treaties of the European Union, on the Functioning of the European Union and the now binding Charter of Fundamental Rights.

Clearly, it is not technically appropriate to talk about state secrets in the case of the European Union, since the latter remains an international organisation entrusted by its Member States to intervene only in those areas established by the founding treaties and to pursue those objectives established by the funding treaties (3). Nevertheless, the European order now spans such a wide range of competences and has developed such a direct relation between citizens and the institutions that the need for transparency and political accountability is as essential for the European Union as it is for its Member States.

As long as the institutions’ work was covered by professional secrecy, there was minimal risk of leaks and any undesirable impact at the national level during the negotiating phases of European measures. Problems related to a different perception of transparency/secrecy were paradoxically raised with the process of democratisation of the European institutions which, due to Maastricht, has been accompanied with the widening of competences. Additionally, and more importantly, the Amsterdam Treaty ensured that the right of access to documents of the Parliament, Council and Commission (art. 255 TEC) was recognised as a fundamental right of European citizens (and of those legally residing in the EU).

In theory, a fundamental right can only be limited by law (4), but the institutional framework resulting from the implementing measures of article 255 ( EC Regulation 1049/01) is a long way from defining a coherent regime of this sensitive topic. To obtain such a result it would have been necessary to mediate between two different juridical traditions which divided (and still divide) some countries; indeed, Northern Europe is traditionally more favourable to transparency needs whereas some southern countries prioritise the efficiency of the decision making process ahead of transparency (5).

This unresolved conflict is reflected in Regulation 1049/01, which regulates for two different regimes, respectively one of a general nature and one of a specific nature. The general one establishes transparency and the right of access to information as the general rule to which it is possible to derogate only under the provisions established by art. 4. Furthermore, it stems from the will of the author who submitted the document to the institution (whether that be another institution, a Member State or a third party). The ratio behind the suppression of the “author rule” as confirmed by the Court (6), is evidently that of avoiding that additional exceptions are added to those already foreseen by law (7), which would have the effect of nullifying the answer to the citizen requesting the access to a document or information (and therefore being incompatible with the principle of certainty of law).

Nonetheless, the general rule of Regulation 1049/01 also presents a significant exception to article 9 (8), which establishes a specific regime for the so-called “sensitive documents” defined as “… documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’ (9) in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.

The regime established in Article 9 is evidently a “lex specialis”, which is only applicable to the external affairs and defence matters (the former “second pillar “). However, it is also an incomplete regime because Regulation 1049/01 does not specify (as foreseen in art. 255 TEC which now is replaced by art. 15 TFEU) the general principles regarding the classification of “sensitive” documents. Although the legislator has abdicated its role and referred the decision to the institutions internal regulations, defining such a rule is not a mere organisational matter.

The official justification for this attempt at a ‘quick-fix’ in 2001 was related to the approaching deadline for the approval of the regulation, as foreseen by the Treaty. The real reason, however, was the impossibility to reach an agreement between the European Parliament and the Council over the adoption of NATO standards at the European level.

Due to article 9 and the fact that that it refers to the internal regulation of the institutions, some measures were introduced through the back door, since the internal regulations of the Council and the Commission (11) were accompanied by the need to have the author’s consent when classifying the document as “sensitive”(12).

In this way, not only have NATO standards become de facto the standards of reference for EU classified information (13), although (for the moment) limited to external and defence matters, but it also re-establishes the pre-Maastricht regime for EU citizens and institutions such as the European Parliament and the Court of Justice. Indeed, these actors cannot refer to the “right” of access to information, because the holding institution can always oppose it in the name of non compatibility with NATO standards of internal security regulations (14) or more simply, because the member state or third party (author or co-author) of the classified document does not give its consent to the transmission of the document.

The result is the existence of a conspicuous number of agreements between on one side the Council and the Commission, and the other side third countries, concluded on the basis of an unstable institutional framework (15). Recently, the same agreements have also been concluded by EU agencies such as Europol, Eurojust or Frontex (and therefore outside of the so-called second pillar), on the basis of which the institution and/or the agency (although negotiating on behalf of the European Union) (16) accept that the third country may oppose access to information to EU citizens and even the Parliament and Court.

It is therefore legitimate to wonder about the extent to which this situation is compatible with a European order, allegedly based on the principle of representative democracy (17), fundamental rights and citizenship (18), especially following the entry into force of the Treaty of Lisbon. The issue becomes even more urgent in view of the passage to the ordinary legislative regime and to the (almost) total control of the Court of sensitive matters such as police, internal security and intelligence cooperation (which are increasingly labelled as classified information).

Without effective transparency, risks of abuse or “policy laundering” become too high. This risk is also linked to the reproduction of unwanted situations where information in the field of defence and external affairs (Chapter 2 of the EU Treaty) are kept hidden, not only from the European Parliament for the reasons illustrated above, but also form the national parliaments as the information is regarded as a “European” secret. In this context, the national parliaments arguably receive the same level of access as a third country.

Therefore, the result would be the complete absence of a counterbalance mechanism which should characterise every democratic system and which would be strengthened by these security and defence policies under the formal coverage of European “executive privilege”, which not even the President of the United States of America has ever dreamt.

Luckily, the situation is less worrisome in other parts of the treaties, for example where it is established that the European Parliament must ratify international agreements. In this case, the same Treaty foresees that the Parliament “shall be immediately and fully informed at all stages of the procedure” (art. 218 par. 10 TFEU). This should effectively prohibit the Commission (negotiating the agreements) and the Council (concluding the agreements) from being able to make excuses in order to not reveal all the information.

Indeed, the European Parliament has made reference to these provisions throughout the negotiations on SWIFT, ACTA and the access of the EU to the European Convention on Human Rights. This initiative raised disconcert from the Council and Commission, who obviously realise how difficult it is to maintain two different regimes in the field of classified information depending on whether the negations of the agreements are conducted on the basis of Article 218 TFEU or on the basis of the competences in the field of security and defense (which are based on Article. 9 of Regulation 1049/01 and/or the internal organisation competence of the Council, Commission and security agencies). If in theory it is possible, although difficult, to differentiate between these two agreements at the European level, it turns into a “probation diabolica” to explain  to a third country why matters such as  the fight against terrorism may sometimes refer to an ordinary regime (article 218 TFEU) or to an extraordinary regime (art. 9 1049/01)

The process of re-negotiating the inter-institutional agreements concerning the European Parliament’s access to classified information is ongoing. A first draft agreement will be reviewed by the Committee on Constitutional Affairs of the European Parliament and a second one will take place between the European Parliament and the Council to modify the 2002 agreement applying Regulation 1049/01 (20).

The problem is that some expression of this agreement (not ratified yet) seem to extend the preventive consent to de-classify the document given by the author from the exceptions of defence and security issues to all the matters of competences of the European Union. Such an iron grip would put the European Parliament in a position leading to its abdication  (21) of the right/duty to exercise the democratic control foreseen by the treaty.

However, the issue remains undefined and contradicting signals are coming from the High Representative. This is important as the High Representative is about to adopt a declaration accompanying the decision which establishes the organisation and functioning of the European external service which “ (…) will be applied mutatis mutandis by the High Representative for agreements falling under her area of responsibility, where the consent of the Parliament is required. The European Parliament will be, in accordance with Article 218 (10) TFEU, immediately and fully informed at all stages of the procedure, including for agreements concluded in the area of CFSP.”

It remains to be seen whether the European institutions will be able to finally overcome the long-lasting inconsistencies of the Regulation 1049/01 by establishing a European matter also in the field of the state secrets or whether, by carrying on the current, judicially confusing paths, once again the task of clarification will be left to the Court.



(1) See the fundamental investigation of the Washington Post on the possible abuses of the documents’ classification from the USA administration since 9/11.

(2) See the current debate at the COPASIR concerning the revision of the Italian law on the “services” and the treatment of the state secret (L. 124/2007)

(3) Concept reaffirmed by the German Constitutional Court in several occasions (including 2009 with the famous Lisbon Urteil) the Union cannot gives itself different or wider competences than those granted by the Member State.

(4) As foreseen by the Member States’ constitutions and by the ECHR.

(5) This is an expression also used by article 207 of the “old” EC Treaty but that the Council has always interpreted as the conditions that allow the representatives of the Member States to change their negotiating positions in complete discretion according to circumstantial needs)

(6) This principle has been reaffirmed also recently by the Court of Justice

Case C‑64/05 P Kingdom of Sweden vs Commission of the European Communities (see: )

(7) In the case of a member State it could be requested to see applied its own national regime and in the case of a third country needs


(9) Strangely enough the Italian version of the Regulation 1049/01 only refers to the category of the “confidential” documents.

(10) It is “…public interest safeguards, namely:— public order, — safeguard of military matters — International relations, — financial, monetary or economy policy  of the Community or Member states

(11)See Council decision 2001/264/CE  19  march 2001 adopting internal security regulation OJ n°101,  11.04.2001 modified following the entry into force of the Lisbon treaty.

(12) The “considering” 15 of the regulation invited the Member states to respect in the name of the principle of loyal cooperation the classifications established by the European institutions so as to avoid leaks related to National security matters “ Even though it is neither the object nor the effect of this Regulation to amend national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyal cooperation which governs relations between the institutions and the Member States, Member States should take care not to hamper the proper application of this Regulation and should respect the security rules of the institutions.

(13) European Classified Information  (EUCI)

(14) For obvious reasons and given the peculiar nature and constitutional mission of the European Parliament or the court of Justice.

(15) See as a last example the agreement between the EU and Liechtenstein concerning the security procedures for the Exchange of classified information

(16) Art. 3 of the above mentioned agreement establishes that  “the European Council, the Council of the European Union (hereinafter referred to as ‘the Council’), the General Secretariat of the Council, the High Representative of the Union for Foreign Affairs and Security Policy, the European External Action Service (hereinafter: ‘the EEAS’) and the European Commission. For the purposes of this Agreement, these institutions and entities shall be referred to as ‘the EU»

(17) Artt. 9-12 of the TEU in specific art. 10

(18) Artt.18-24 TFEU

(19). See for example the regime for the treatment of classified information foreseen by the Decision of the Council establishing Europol and the implementing measures concerning the exchange of information with third countries: These provisions, which entered into force in January 2010 should be interested on the basis of the regime before the entry into force of the Lisbon Treaty in virtue of the transitory provisions foreseen by protocol  n° 36.

(20) The text of the inter-institutional agreement EP-Council is available at:

(21) Obviously it would be only a de fact abdication given that the inter-institutional agreement cannot modify a juridical situation defined by a treaty. However, the signal is worrying as much as the stall of the revision of Regulation 1049/01 and the juridical vacuum under which the EU institutions (and agencies) are now operating, since they should have defined their own norms in the field of transparency/confidentiality on the basis of principles that still need to be defined after Lisbon.

(22) See in specific the declaration f the high represntative: ) “.. The results of the ongoing negotiations on the Framework Agreement between the European Parliament and the Commission on negotiations of international agreements will be applied mutatis mutandis by the HR for agreements falling under her area of responsibility, where the consent of the Parliament is required. The European Parliament will be, in accordance with Article 218 (10) TFEU, immediately and fully informed at all stages of the procedure, including for agreements concluded in the area of CFSP.. (…) 4. The present system of providing confidential information on CSDP missions and operations (through the IIA 2002 ESDP EP Special Committee) will be continued. The HR can also provide access to other documents in the CFSP area on a need to know basis to other MEPs, who, for classified documents, are duly security cleared in accordance with applicable rules, where such access is required for the exercise of their institutional function on the request of the AFET Chair, and, if needed, the EP President. The HR will, in this context, review and where necessary propose to adjust the existing provisions on access for Members of European Parliament to classified documents and information in the field of security and defence policy (2002 IIA ESDP). Pending this adjustment, the HR will decide on transitional measures that she deems necessary to grant duly designated and notified MEPs exercising an institutional function easier access to the above information..”

Trafficking of human beings: towards a more protective regime?

The European Parliament submitted a draft report  by the co-rapporteurs  for discussion on 28 June 2010 (2010/0065(COD)) on the Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA, 28 May 2010, 10330/10.

Trafficking in human beings has been primarily dealt in the international context when in 2000, the United Nations introduced the Convention on Transnational Organized Crime (UNTOC) and the supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, (the Trafficking Protocol).

According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children 2000 – Article 3(a):

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

This definition clearly distinguish three elements of the trafficking of human beings:

  • the act
  • the method
  • the purpose

Despite important step forwards, trafficking in human beings remains an issue that is still largely misunderstood and, consequently, inadequately addressed. The limited recognition of multiple forms of trafficking, the existence of re-trafficking activities and the role the State should have towards victims of tarfficking are some of the main problems that must be addressed.

The European Commission’s Group of Experts on Trafficking in Human Beings was established in 2008 pursuant to a decision taken in 2007 to establish a body to advise the Commission on policy and legal issues relating to trafficking in human beings. The Group has 21 members, who come from around the EU. The members come from governments of members States, as well as NGOs, international organisations and academia. The Group meets four times per year in Brussels. Its mandate is to provide the Commission with independent advice and recommendations relating to the development of law and policy with regard to trafficking in human beings, both with regard to issues raised by the Commission and also with regard to issues upon which the Group feels it should comment.

The latest opinion of this group refers to the European court of Human Rights case Rantsev v. Cyprus and Russia. The decision of the Court emphasizes the human rights aspects of trafficking of human beings, in particular with respect to the responsibility of the State to protect individuals form such practice. The opinion of the group of experts should be carefully taken into account in the current negotiations on the Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA, 28 May 2010, 10330/10 and tehrefore we fully report it below.

Opinion Nº 6/2010 of the Group of Experts on Trafficking in Human Beings of the European Commission

On the Decision of the European Court of Human Rights in the Case of Rantsev v. Cyprus and Russia

The Group of Experts on Trafficking in Human Beings of the European Commission, having taken into consideration the following:

The Decision of the European Court of Human Rights in Rantsev v. Cyprus and Russia,[1]

The Stockholm Programme, which states that after the entry into force of the Lisbon Treaty, the rapid accession of the EU to the European Convention on Human Rights is of key importance,

Also taking into consideration the Action Plan implementing the Stockholm Programme and its Annex, in which the first action under the title “Promoting citizens’ rights: a Europe of rights. A Europe built on fundamental rights” is the recommendation to authorise negotiation of EU accession to the Convention for the Protection of Human Rights and Fundamental Freedoms,

adopts the following Opinion.

[1] The Group of Experts on Trafficking in Human Beings of the European Commission has examined the decision of the European Court of Human Rights in the case of Rantsev v. Cyprus and Russia.

[2] The Group notes that the European Union, and all of its Member States, are bound by the principles of human rights contained in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and interpreted by the European Court of Human Rights.

[3] The Group considers that the decision offers important guidance on the human rights aspects of THB. This is important also in view of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings and its monitoring mechanism “GRETA”.

[4] While THB is generally a crime perpetrated by private individuals, the State nevertheless has human rights obligations towards people who have been trafficked or who are at risk of being trafficked in the future, because of the State’s obligation, under Article 1 of the ECHR, to “secure to everyone within their jurisdiction the rights and freedoms” defined in the convention. The Group welcomes the clarification of the meaning of this obligation with regard to THB.

[5] Article 4 of the ECHR prohibits the holding of anyone in slavery or servitude. It also prohibits, with limited exceptions, forced or compulsory labour. No derogations are permitted from that prohibition. The obligations established in Article 4 extend to the prevention of any of these practices by private individuals. As the Court noted in Siliadin v. France:

limiting compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. Accordingly, it necessarily follows from this provision that States have positive obligations … to adopt criminal-law provisions which penalise the practices referred to in Article 4 and to apply them in practice…[2]

[6] The Group notes with approval the acceptance by Cyprus that it had obligations to ascertain whether individuals, who come to the attention of State authorities as potential victims of THB, have in fact been trafficked or subjected to sexual or any other kind of exploitation.[3]

[7] The decision emphasizes that THB is prohibited by Article 4 of the ECHR without the need to define it either as slavery, servitude or forced labour. However, the Group welcomes the statement by the Court that THB may be very similar to slavery because traffickers exercise powers tantamount to ownership,[4] and that “trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention.”[5]

[8] The Group notes that the obligation under Article 4 of the ECHR extends beyond the duty to prosecute and penalize effectively anyone who has engaged in acts aimed at holding another in slavery, servitude or forced labour. That duty clearly includes having in place national legislation

… adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.[6]

The Group welcomes this recognition that the State’s obligation extends beyond the criminal law to include significant victim-protection measures, not only for those who have already been trafficked but also for those at risk of being trafficked in the future. Furthermore, these obligations apply to all persons within the State’s jurisdiction, irrespective of whether the victim’s State of origin is in the European Union.

In addition the Group also notes positively that the Court has addressed the issue of immigration regulations that can contribute to trafficking; in this regard the Group underlines the importance of systematically assessing the impact of immigration legislation and policy on the prevention of trafficking and the protection of victims’ rights.

[9] The Group notes further the Court’s statement that State authorities may be required to take immediate practical measures of protection of victims or potential victims of THB where

the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified victim had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk.[7]

Accordingly, it is not open to the State to plead ignorance of an individual’s situation where it should have made itself aware of the risk faced.

In the opinion of the Group of Experts, such practical measures include:

  • the securing of the immediate physical safety of the trafficked person, or person at risk of being trafficked;
  • their physical, psychological and social recovery, with the immediate provision of information about their rioptions in a language that they understand;
  • referral to assistance and support with the aim of long-term social inclusion.

[10] The Group considers that these immediate measures should be taken regardless of whether the person is able or willing to cooperate with the authorities. In addition, such measures might include, but are not restricted to:

  • ensuring that the person has legal assistance and access to justice;
  • evaluating the need for short or longer-term international protection, whether through refugee status or subsidiary/complementary protection.[8]
  • safe and dignified repatriation involving cooperation with the source State and relevant NGOs and following an individual risk assessment;

[11] The Group furthermore welcomes the statement by the Court that the State’s obligation under Article 4 includes a procedural duty to investigate situations of potential trafficking, independently of any actual complaint having been made by the victim, once the State is aware of such a situation. This duty will require urgent action by the State where there is a possibility to remove an individual from a harmful or potentially harmful situation.[9]

[12] The Group notes the recognition by the Court that not only destination States but also source and transit States have obligations under Article 4 to establish their jurisdiction over any trafficking offence committed on their territory, as well as to cooperate with the relevant authorities in other States.[10] The Group considers that such cooperation is essential in cases of transnational THB.

[13] The decision of the Court makes clear that THB is not only a serious criminal act; States must take significant action in order to meet their obligation to secure to all those within their jurisdiction the right to be free from the threat of enslavement, servitude and forced labour and to live in dignity. Such action is required by the procedural obligation to investigate possible cases of THB and the substantive obligation to prosecute effectively those accused of THB and to put in place effective systems to protect those at risk and to provide access to justice for victims. Such systems should involve both immediate (urgent) and longer-term measures.

[14] The Group notes with approval that the decision of the Court makes clear that a comprehensive approach, encompassing all aspects of prevention, protection and prosecution, is essential in securing effective (State) action against THB.[11]22 June 2010

[1] Application No. 25965/04, 7 January 2010.

[2] Siliadin v. France, Chamber Judgment, Application No. 73316/01, 26 October 2005, para 89.

[3] Para 187.

[4] Para 281.

[5] Para 282

[6] Para 284.

[7] Para 286.

[8] UNHCR, Guidelines on International Protection No.7: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the status of refugees to victims of trafficking and persons at risk of being trafficked (2006); Group of Experts on Trafficking in Human Beings set up by the European Commission, Opinion No. 4/2009 of 16 June 2009, On a possible revision of Council Directive 2004/81/EC of 29 April 2004 on the residence permit issues to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, para 20.

[9] Para 288.

[10] Para 289.

[11] Para 285.

Readmission agreement with Pakistan: international human rights norms respected?

One of the main debates concerning the European Union (EU) refers to whether policy making in an EU institutional setting can be defined as supranational or intergovernmental. Migration policies have traditionally supported the latter argumentation; however, since the implementation of the Treaty of Amsterdam (1999) a slow movement from an intergovernmental to a more communitarian form of cooperation in migration policies is undeniable. This shift of sovereignty is noticeable in relation to readmission agreements with third countries. The last of these agreements is with Pakistan. The LIBE Committee will be voting a draft report  the 13 July 2010.

Agreements in force with visa facilitation


Negotiation lasted from 2003 to 2005 and the agreement entered into force in 2004


Negotiations lasted from 2006 to 2007 and the agreement was signed 1 January 2008


Negotiations lasted from 2006 to 18 September 2007 and the agreement was signed 1 January 2008


Negotiations lasted from 2007 to 2007 and the agreement was signed 1 January 2008


Negotiations lasted from December 2006 to 2007 and the agreement was signed 1 January 2008


Negotiations lasted from 2002 to 2007 and the agreement was signed 1 January 2008


Negotiations lasted from  2006 to 2007 and the agreement was signed 1 January 2008


Agreements with no Visa facilitation

Hong Kong

Negotiations lasted from 2001 to 2003 and the agreement entered into force in 2004


Negotiations lasted from 2001 to 2003 and entered into force in 2004

Sri Lanka

Negotiations lasted from 2001 to 2004 and entered into force in 2005


After 10 years of negotiations (2000-2010) the LIBE Committee is about to vote on a draft report on 13 July.

Negotiations with visa facilitation


Negotiations with Georgia have completed in just one year (from 2009 to 2010). The agreement foresees visa facilitations and is now waiting for the signature of the Council

See also:

Leda Bargiotti