Suggested amendments to the European Commission's proposed Regulation regarding public access to documents of the European Parliament, the Council and the Commission prepared by Statewatch
Change title from: "Regulation.." to "Decision.."
Comment: The purpose of the proposed measure is to effect Article 255 of the Amsterdam Treaty on public access to EU documents. It would replace the Council Decision of 20.12.93 and the Code of conduct (6.12.93) concerning public access to Council and Commission documents.
The effect of adopting a "Regulation" rather than a "Decision" is that it would bind and override Member States' national policies and practices to freedom of information in regard to EU documents (see second sentence of Article 11). There is no need for the measure to be a "Regulation", nor was there any power under Article 255 of the EC Treaty, inserted by the Amsterdam Treaty for the Community to adopt legislation governing the access rules of Member States, or of any other institution besides the three named EU institutions (the Council, the Commission and the European Parliament).
i) add at the beginning of the 2nd sentence:
"The exceptions must be listed exhaustively and examples.."
ii) delete: 3rd sentence.
Comment: This sentence refers to the definition of a "document" in Article 3.a. which seeks to permanently exclude from access "discussion documents, opinions of departments and informal messages". This is argued to be necessary to protect "free and frank" discussion and the need for officials to have the "space to think" (Explanatory memorandum).
Since 1993 citizens have been entitled to apply for any document subject only to specific and narrowly drawn exceptions. No documents are permanently excluded. The deletion of this sentence and the deletion of the second part of Article 3.a (see below) would restore the status quo. The principle of being able to apply for any documents should safeguarded by the provision on exceptions.
i) delete: ALL
"National legislation on access to documents is unaffected by this Decision or by any other provision in the Treaty."
add point (13) as follows:
"all other Community institutions, agencies and bodies established by the Treaty, and all bodies established pursuant to the Treaty on European Union should adopt rules similar to those in this Decision by 1 May 2001."
Comment: The other EC and EU institutions, agencies and bodies have powers to organize their own affairs, pursuant to which most of them have already adopted rules on access to documents. In some cases (for example, the European Investment Bank), these rules are inadequate, and some institutions (Europol, the two EC courts) have yet to adopt such rules. In order to ensure consistency between the EU institutions, all such bodies should adopt effective access rules based on the principles in this Decision by the deadline date for adopting access rules for the Commission, Council and EP.
2.2: Delete all
No evidence is given in the explanatory memorandum for these provisions.
"This Regulation shall not apply to documents already published or accessible to the public by other means"
Comment: This looks innocuous BUT: it refers to the present practice whereby once a measure has been published by the Publications Office of the EC (eg: in the Official Journal) then documents are not at present provided by the Commission to applicants (who have to purchase complete and often expensive copies of the OJ).
Moreover, documents published in the Official Journal are not the same as the actual documents which contain specific document references which enable a document to be located in the decision-making process.
Nor would it be acceptable for this provision to be applied to documents "published" on the internet - this would assume that all citizens have access.
"This Regulation shall not apply where specific rules on access to documents exist."
Comment: This is not referred to in the Explanatory memorandum. It could refer to "rules" relating to the Schengen acquis. In addition, it overturns the Court of First Instance ruling in Case C-92/98, Interporc II, and as a result would make the new access rules more restrictive than the present system.
i) delete everything after ".... audiovisual recording)"
ii) insert after ".. recording)" the words: "sent or received by the officials of the institutions in their official capacity."
Comment: This would exclude, from the rules only, documents and/or communications of a purely personal nature.
As drafted it is completely unclear which documents would be released and when. As Mr Soderman has observed:
"the Regulation would involve the exercise of a large amount of discretion by the institutions. In practice, therefore, citizens would not so much enjoy rights as be dependent on the goodwill of officials exercising discretion on behalf of the institution."
i) change opening to read:
"the public interest, solely on the following grounds"
Comment: This makes the list exhaustive/limited.
ii) delete: relations between and/or with the Member States or Community and non-Community institutions
Comment: No reasoning for adding this exception is given in the explanatory memorandum. Its meaning is very unclear, and documents potentially falling within this exception would be covered by other exceptions such as confidentiality
iii) change: "the stability of the Community legal order"
to: "confidentiality of the opinions of the legal services of the institutions"
Comment: Again no reasoning for this addition is given. This change would confirm existing case law in the Carlsen case, narrowly limiting the exception to a particular type of document rather than allowing for use of a very vaguely worded exception.
iv) change: "infringement proceedings, including the preparatory states thereof"
to: "infringement proceedings, until the reasoned opinion has been released or the file has been closed."
Comment: This preserves the distinction between reasoned opinions and other infringement documents which the Court of First Instance drew in Case C-309/97, Bavarian Lager, and allows complainants and the general public some supervision over the Commission's exercise of its infringement powers.
v) move: "the deliberations and effective functioning of the institutions"
to a: new 4.2 (renumber 4.1) to read:
"The institutions may refuse access to documents which could significantly undermine the confidentiality of the proceedings of the institutions"
Comment: This would preserve the status quo, which makes this a discretionary exception and which is concerned with the specific issue of "confidentiality", rather than the broad notion of "deliberations and effective functioning". It would improve upon the status quo by inserting a test for "significantly undermining" confidentiality, in line with the new test applying to the mandatory exceptions.
vi) Amend 4(d) to read:
confidentiality as required by the legislation of Member States and as requested by the third party that supplied the document, where the grounds set out in sub-paragraphs a) to c) apply".
Comment: Otherwise it would gives carte blanche to businesses, third states, etc. to refuse documents and makes nonsense of the third-party disclosure expansion. Documents from businesses and third states could still be refused if they contain commercial secrets, threaten international relations, etc.
5.1: replace "repetitive" with "repeat"
Comment: No reasoning is given for this change - from "repeat" to "repetitive" - and is a thinly disguised attempt to by-pass the European Ombudsman's ruling in the Statewatch complaint.
The term "repetitive" would give the institutions the power to refuse access to diligent researchers, journalists and academics specialising in a subject area and to companies and non-governmental organizations with ongoing interests in that area.
The option of a "amicable and fair solution" is not borne out by the practice since 1993. Applicants are rarely if ever consulted.
5.4 and 6.2:
replace "one month" by "two weeks"
Comment: The period of "one month" is frequently extended during the "vacational seasons" (Xmas and the whole of August) or if the request concerns an undefined large number of documents to two months (if a document is refused the appeal process can take up to another two months).
i) change: commercial purposes to the current "commercial gain"
ii) delete: "or exploit it for any other economic purposes"
Comment: No explanation for this change to the existing practice is given in explanatory memorandum. Institutional documents, once released, should be in the public domain except where they are clearly used for "commercial gain".
The formulation "exploit it for any other economic purposes" is not explained and would give unacceptable discretion to the institutions. Would a newspaper which substantially quoted a document be "exploiting it"?
change the last line to read:
"a register of all documents."
Comment: When taken in conjunction with the current proposed definition of a "document" (Article 3.a.) most documents would be permanently excluded from the scope of both the access rules and the register of "documents".
The register should contain references to all documents held by the institutions - the granting of access is a separate issue governed by the use of the exceptions. This is a fundamental safeguard against abuse, corruption and undemocratic practices.
i) delete 2nd para: "This Regulation.."
ii) insert: "This Decision is binding in its entirety upon the Council, the Commission and the European Parliament."
See Comment above on effect of adopting a "regulation".
Statewatch, 16 May 2000
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