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Reporting on openness and secrecy in the EU since 1992
updated 4.2.16
Statewatch: Observatory: the Regulation on access to EU documents: 2008 - 2015 which tracks and places on record all the news, analyses and documentation concerning proposed changes to the Regulation on access to EU documents.
Updated 1 June 2015
Transparency in the EU: citizens' right controlled by the elite (journalismfund.eu, link): " Fifteen years with access rules and still no register over documents to look for. Not only citizens, also governments are kept in the dark by the Commission, a new study on EU transparency shows." See: Transparency through tinted windows - On the conditional openness in the European Commission (pdf)EU: Secret trilogue law-making: Giegold: I've no problem with livestreaming secret talks on EU law (euractiv, link):
"The lead MEP on a European Parliament transparency report has said that he was lobbied “all the time” during secret negotiations over EU law, and had better access to classified documents just because he is German. Sven Giegold exclusively told EurActiv he wouldn’t care if “trialogue” discussions were livestreamed and branded a European Commission push for better regulation an attack on parliamentary democracy.
I think that there is a problem of transparency and accountability, and that has to be changed. There’s also a problem of integrity. There’s a problem with transparency because there’s no minutes, because it is not clear when they take place, it is not clear who has participated.
There is also a lack of accountability, because it is not transparent about who has defended which position in the negotiations. Lastly, there is a problem with integrity. The documents that are meant to be secret are not secret. I’ve seen it very often that lobbyists have documents given to them through sources in the Parliament, or more often through the Council."
EU: SECRET, CLOSED, TRILOGUES: NGO Letter to the Council, the Commission and the European Parliament (pdf):
"We, the undersigned organisations, hereby express our concern regarding the pervasive use of so-called "trilogue" negotiations within the EU decision-making process. It is our view that the trilogues have, regardless of intent, become a means for EU institutions to bypass democratic good practices, prevent public participation and are contrary to the principles of transparency and accountability recognised under the EU treaties, including citizens' right to access public documents.
In light of the outlined problems, we are calling for a major reform of the trilogue process in order to end this unacceptable democratic deficit in the EU decision-making. We call for the publication of all documents in a timely and systematic manner.
Further, we ask that disclosure not be limited to the multicolumn meeting documents, but also to public access to the meetings and access to any reports or notes discussed over the course of the process, in line with the procedures for normal Parliament committee meetings. There is an overriding public interest in the timely and systematic disclosure of these documents in order to enable proper public scrutiny of EU decision-making."
Signed by 16 EU NGOs including Statewatch
The Council challenges the right of the European Ombudsman to conduct an inquiry into secret "trilogues" (in which most EU legislation is decided)In May 2015 Emily O'Reilly, the European Ombudsman, began an Own-initiative Inquiry on the "transparency of trilogues (pdf), But the Council of the European Union challenges the right of the Ombudsman to carry out such an inquiry: Council response to the Ombudsman (pdf)
"Trilogues" are meetings of the two EU co-legislators: the Council of the European Union (the 28 EU governments) and the European Parliament (with the European Commission in attendance). The purpose of trilogues is to speed up decision-making by agreeing new legislative measures quickly at 1st reading.
Steve Peers, Professor of Law, University of Essex, comments: "The Council's objection to the Ombudsman's competence is totally unfounded"
Tony Bunyan, Statewatch Director, comments: "Over 80% of all new EU laws are agreed in these secret trilogues - they should have no place in a democracy worthy of the name - they should be held in the open with full public access to documents so that we can see what is being decided in our name."
As part of the Inquiry the Ombudsman has organised a Consultation meeting (link) on 28 September 2015 (10.00 - 12.00 in Room JAN 4Q1 of the European Parliament in Brussels).
Statewatch was amongst the first to criticise secret trilogues: See: Secret trilogues and the democratic deficit (September 2007, pdf) - European Parliament: Abolish 1st [and 2nd] reading secret deals - bring back democracy “warts and all” (pdf) - Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf)
Emilio de Capitani applied to the European Parliament for documents summarising negotiations between the Council of the European Union and the European Parliament is secret trilogue meetings, namely:
"multicolumn tables (describing the Commission proposal, the Parliamentary Committee orientation, the Council internal bodies suggested amendments and, if existing, suggested draft compromises) submitted to trilogues for the current pending co-decision procedures"
The parliament refused access largely on the grounds that multi-column documents in its position had been produced by the Council and therefore could not be released. They also claimed that there are a large number of such documents - exactly!.
"This paper mentions several steps that could be taken within the Council framework to enhance transparency, most importantly by focusing on active transparency, whereby the institutions pro-actively make their documents public and work in the most transparent manner."
The European Ombudsman, Emily O'Reilly, has opened an investigation into the transparency of "trilogues" with a view to boosting transparent law-making in the EU. Trilogues are informal negotiations between the European Parliament (EP), the Council and the Commission aimed at reaching early agreements on new EU legislation.
See: Statewatch Analyses: Secret trilogues and the democratic deficit (pdf) and Abolish 1st [and 2nd] reading secret deals - bring back democracy “warts and all” (pdf)
"It is extremely difficult to strengthen parliamentary oversight of the EU’s trade policies without clear and predictable rules and procedures for the EP to access relevant information from the Commission and the Council. This study provides an overview on the rules guaranteeing access to information in international trade negotiations both in the EU and in selected third countries."
"Three-way talks between the major European institutions to broker deals on EU law face being investigated over their lack of transparency by the bloc’s maladministration watchdog."
See: Statewatch Analyses by Tony Bunyan: Abolish 1st [and 2nd] reading secret deals - bring back democracy “warts and all” (pdf) and Secret trilogues and the democratic deficit (pdf): "Under a new agreement between the Council and the European Parliament the efficiency of decision -making is enhanced at the expense of transparency, openness and accountability "
"“Parliament should register all existing Parliament documents in its electronic Register of documents, in particular the minutes of the meetings of Parliament Committee Coordinators.”"
"The frequency of invoking the protection of the Commission's decisionmaking process (Article 4(3)) as ground for refusal at the initial stage, in relation to all invoked exceptions, slightly increased in comparison with the previous year (27.1% against 25.2% in 2012). It was the most frequently invoked exception,..." [emphasis added and 16.3% of confirmatory applications are refused on the same grounds]
And see: Annex - statistics (pdf)
Dutch liberal Sophie in 't Veld wins transparency lawsuit against the Council of Ministers (ALDE group, link) See Judgment full-text: Council appeal against the judgment of May 2012 (pdf) and Judgment: May 2012 (pdf): Lawyer Onno Brouwer who represented Sophie in 't Veld in this case and others in landmark transparency cases before the General Court and the Court of Justice, challenging EU institutions on openness and accountability, says: "the Court's view that a European institution must demonstrate that the disclosure of a document effectively harms the public interest is of great practical importance for journalists, interest groups and all those who wish to obtain access to EU documents".
In July 2009, Dutch liberal MEP Sophie In't Veld (D66) demanded access to a legal opinion to the Council regarding the legal base of the SWIFT-agreement. Access to her was denied and kept secret. In 't Veld then brought action before the General Court, and won. The Council appealed against the ruling. But the European Court of Justice has now judged that the request must again be dealt with appropriately by the Council and that enhanced transparency is needed.
In 't Veld: "This is a great victory. The Court clearly states that transparency is a prerequisite for a truly democratic Europe. The European Union must develop from a Europe of diplomats, discretion and confidentiality to a Europe of citizens, administrative transparency and trust. "
Lawyer Onno Brouwer who represented Sophie in 't Veld in this case and others in landmark transparency cases before the General Court and the Court of Justice, challenging EU institutions on openness and accountability, says: "the Court's view that a European institution must demonstrate that the disclosure of a document effectively harms the public interest is of great practical importance for journalists, interest groups and all those who wish to obtain access to EU documents".
The CJEU increases public access to legal advice on international treaties (EU Law Analysis, link):
"It is true to say that this process is ultimately democratic, since all international treaties agreed by the EU and third States then have to be approved by the Council, and most have to be approved by the European Parliament and often also national parliaments. However, it is not democratic in the full sense of the term, since there is a very limited opportunity for an open and public debate (as compared to the legislative process) before the negotiations have concluded."
- Frontex given until end of March 2014 to comply with the Ombudsman's Recommendations to change its Management Board Decision putting into effect the Regulation on public access to EU documents
- Eurojust seeks to avoid any compliance until some undefined point in the future
- Europol meets
four Ombudsman Recommendations - but the launch of its public
register of documents "planned for completion by the end
of 2013" is overdue
Tony Bunyan, Statewatch Director, comments:
"Access to documents is the lifeblood of accountability and democratic standards so why has it taken nine, seven and ten years respectively for these Agencies to start coming into line with EU law on public access to documents? Who is responsible for the failure to ensure compliance with EU law? Is it the European Commission which, since December 2009, has been charged under Article 17 of the Lisbon Treaty with ensuring the application of EU law?
It is high-time that these three agencies were made fully accountable to EU law and to the public by adopting and fully implementing the right of access to documents. I look forward to the Ombudsman re-visiting these complaints."
But see here the full document: Public acess to documents (LIMITE, 17177/13, 29 November 2013, pdf)
"The Treaty of Lisbon updates the terms under which the principles of transparency and openness clarify the right of public access to documents in the European Union. This right is both a fundamental right of individuals and an institutional principle. The revision of Regulation (EC) No 1049/2001, which sets out the arrangements for this, is influenced, to a large extent, by the numerous interpretations from the Court of Justice of the European Union, particularly during the last five years. Observation of the practice followed by the EU institutions and the broad lines of the practices followed nationally indicate that EU law needs to undergo extensive revision, with the aim of both leveraging the case law experience acquired and bringing itself up to date."
"Madrid/Luxembourg, 17 October 2013 — In a case brought by Access Info Europe, the European Court of Justice today rejected arguments by the Council of the European Union that it should be able to keep secret the identities of Member States making proposals in the context of negotiations on future EU legislation....The Council of the EU had fought to defend its policy of releasing legislative drafting documents with the names of Member States tabling amendments blacked out."
The document in question. as the court notes. concerned discussions within the Council on amending the Regulation on public to EU documents - it was dated 26 November 2008 and the full-text (with Member States' positions) was put online at the time by Statewatch: EU doc no: 16338/08 (pdf). At issue was the Council's deletion of Member States' positions: The judgment observes in para 8: "On 26 November 2008 – that is to say, the very day on which the requested document was created – an unedited version of the requested document was made available to the public on the internet site of the organisation Statewatch, without authorisation (‘the unauthorised disclosure")."
This seemingly harmless amendment to the rules for the archiving of all the documents of EU institutions (European Council, Council of the European Union, European Commission, European Parliament and agencies and bodies) excludes the Court of Justice and the European Central Bank from its scope - they will be allowed to decide on a "voluntary basis" which documents to deposit or not.
Tony Bunyan, Statewatch Director, commented: "To exclude the Court of Justice and the European Central Bank from the obligation to deposit their documents in EU archives is a backwards step. The rules only apply to documents which are at least 30 years old and if there are specific categories which require longer protection the period could be extended - though it might be asked why? To remove these institutions from the obligation to deposit their archives means that the lessons of history will never be learnt and people will never know what happened and why."
OVER 50% of initial requests to the Council for documents are refused to keep secret discussions on new measures
These figures sound good until the detail is examined in the Annual Report: The reasons for refusal of access on an initial application was 41.3% were for the "protection of the institution's decision-making process" (this is under Article 4.3 of Regulation 1049/2001). Understandably many applicants are interested in documents which concern new measures being discussed in the Council and its Working Parties yet it would appear that of over 50% are refused - in addition to 41.3% being refused for this reason 30.0% are refused for "Several reasons together" which can also include refusal for the "protection of the institution's decision-making process".
Of the documents held or produced by the Council:of the European Union in 2012
13,817 were classified as "Restricted" in 2012 - the highest annual figure ever
1,339 were classified as "Confidential" in 2012
9 were classified as "Secret"These includes documents produced by the Council and those sent to the Council by the European Commission or the European External Action Service (EEAS). The figures for "sensitive"/classified documents produced by the Council itself (and includes in the figures above) are given as:
None were classified as "Top Secret"
33 were classed as "Secret" in 2012
332 were classified as "Confidential" in 2012 (most are not recorded in the public register)
The figure for the number of "Restricted" documents (the largest category is not given as "Restricted" documents are not referred to in the Regulation, Article 9).Tony Bunyan, Statewatch Director comments: "The largest category, "Restricted", 13,817 documents, is of the greatest concern. "Restricted" is defined as where the disclosure of a document would be "disadvantageous" to the interests of the EU or a Member State. The term "disadvantageous" can be used to keep current and ongoing discussions secret and hence stop any critical media coverage - to enforce what has been called "the space to think" for Council and Commission officials and keep the people uninformed and unable to make their views known."
"Today's ruling unfortunately upholds the culture of discretion and confidentiality of diplomats that was common in the fifties", Dutch MEP Sophie In 't Veld (ALDE/D66) says in a reaction to the judgment of the European General Court in her case against the European Commission for the refusal to disclose documents on the negotiations on the anti-piracy treaty ACTA. The Court ruled, in favour of In 't Veld, that the Commission had classified too many documents confidential. However, the Court also supported the Commission by stating that a general confidentiality agreement with negotiating partners is allowed. In 't Veld: "This way diplomatic negotiations are routinely classified confidential while citizens are left in the dark."
ECJ: JUDGMENT ON MERGERS AND ACCESS TO DOCUMENTS: The Court defines the scope of the right of access to documents of the EU institutions in the context of merger control proceedings (Press release, pdf): "The Commission may, subject to certain conditions, refuse access to documents relating to merger control proceedings without first carrying out a concrete, individual examination of those documents" Full-text of judgment (pdf)
The double-faced language of the Council position means also that while it appears in Article 12 that documents concerning legislative and non-legislative acts: "shall, subject to Articles 4 and 9, be made directly accessible to the public" they are still subject to the general rule in Article 3a above. It would thus negate Articles 15.1 and 15.3 para 5 of the Lisbon Treaty.
Tony Bunyan, Statewatch Director, comments:
" In 1997 the Amsterdam Treaty promised to "enshrine" the public's right of access to EU documents but in 2001 we only got half the cake. If the Council and the Commission get their way we will be left with just a few crumbs [small fragments]. Access to documents is the life-blood of a healthy, vibrant, democracy which encourages informed consent and dissent. Instead the Council wants an unaccountable democracy bereft of content and meaning."
The Council had hidden three crucial documents and claimed that access could not be given because 1) It would "prejudice Council's capacity to conduct frank and candid discussions". In other words to meet in secret as a legislature under the so-called "space to think" (under Article 4.3 of the Regulation on acces to documents) see: The case for the repeal of Article 4.3 2) The Council then claims that there was an "absence of any element suggesting an overriding public interest" in dislcosure - it is hard to think of an issue on which the public's right to know what is being discussed manifestly outweighs the need for secrecy. 3) The Council concludes by saying that access may to given "after the the final adoption of the act" - subject still to Article 4.3 para 2.
Tony Bunyan, Statewatch Director, comments:
"The notion that the wish of a legislature to meet in secret (by failing to release the documents being discussed) outweighs the public interest of the citizens on such a fundamental issue, namely the right to know what is being discussed and proposed in a legislative process in order to know and allow for public debate, has no place in a democracy worthy of the name."
"Sophie in ‘t Veld, MEP (ALDE, NL), welcomes today’s ruling of the General Court of the EU on her request for access to the opinion of the Council Legal Service on the so called EU-US 'Swift agreement' on the transfer of bank data. "I am pleased the Court largely supported our claim, and puts the interest of the citizen before institutional interests. The Council will have to publish the document, with the exception only of those parts that could reveal the directives that might reveal the strategic objectives pursued by the EU in the negotiations, or the specific content of the agreement envisaged. It is a step forward for transparency in Europe, that the General Court makes it clear that negotiations on international agreements are not automatically exempt from EU transparency rules".
and European Court of Justice: Advocate General Opinion: Full-text: Sophie in ’t Veld v Council of the European Union (pdf)
"Annuls the decision of the European Parliament of 12 February 2010 in so far as it refuses to grant Kathleen Egan and Margaret Hackett the access requested to the public registers of assistants to former members of the European Parliament"
- "Now is not the time to compromise on transparency" (Michael Cashman MEP)
- Danish Council Presidency invokes "the space to think"
- Council and Commission question the definition of a "document"
- Council seeks to restrict access to legislative documents
- "The outcome of the process which is now being embarked on will determine the future of democratic accountability on the EU" (Tony Bunyan, Statewatch Director)
"Given the way that the EU is rapidly evolving in institutional and political terms the time has come for the issue of classified information in the EU to be confronted head on. The EU needs a general law on classification of documents applying to all the institutions and organs of the EU and adopted according to the normal legislative procedure."
Background see Decision by made the leaders of the politcal groups not by the parliament as a whole: Decision of the Bureau of the European Parliament of 6 June 2011 concerning the rules governing the treatment of confidential information by the European Parliament (pdf)
a) 26.42% of requests for documents are refused under Article 4.3 of the Regulation - to protect the "space to think", to keep secret documents under discussion;
b) the number of applications for documents has risen from 5,055 (2009) to 6,127 which is no at all surprising as the Commission's public register of documents is pathetic.
c) There are just 5,109 user sessions per month on the Commission's public register of documents - by way of comparison the Statewatch European Monitoring and Documentation Centre (SEMDOC) has 12,600 user sessions a month. This is primarily because the Commission's public register contains less than 10% of the documents it produces or receives and may of these do not give access to the document itself.
It will be recalled that Statewatch lodged a successful complaints with the European Ombudsman on the Commission's failure to maintain a complete register of documents under Article 11 of the Regulation on public access to documents: See: : Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf)
"The 27 EU-ambassadors in Brussels have agreed to make internal security rules for information binding law in the member countries. The 15 top members of the European Parliament have decided on similar rules. Information ”disadvantageous” to the EU shall not be disclosed to the public."
"An EU source told EUobserver that potentially the positions of states on all subjects and discussions at the level of working group could be opened up for public scrutiny: "The decision-making process as established, the 'space to think' must be protected. This is what is at stake.... one source close the matter told EUobserver that a full 20 member states are backing the legal action."
Tony Bunyan, Statewatch Director, comments:
"The Council are trying to bully the European Court of Justice by weight of numbers to protect their so-called "space to think" because their argument is patent nonsense. The Council is a legislature together with the European Parliament when adopting EU measures - a "legislature" in a democracy worthy of the name cannot meet in secret. Yet this is the practice the Council wants to perpetuate."
See: Full-text of ECJ judgment (pdf) and The case for the repeal of Article 4.3
See critique of Article 10 which severely limits the information to be publicly available: EU: Deepening the democratic deficit: the failure to “enshrine” the public’s right of access to documents (pdf) by Tony Bunyan.
"On 15 February, Corporate Europe Observatory launched a legal action1, suing the EU’s executive in the EU General Court for withholding documents related to the EU’s free trade talks with India. The Commission is accused of discriminating in favour of corporate lobby groups and of violating the EU’s transparency rules.
The case concerns 17 documents including meeting reports, emails and a letter, which the Commission’s trade department (DG Trade) sent to industry associations including BusinessEurope and the Confederation of the European Food and Drink Industry (CIAA). While these corporate lobby groups received full versions of the documents, the Commission only released censored versions to Corporate Europe Observatory, arguing that full disclosure would undermine the EU’s international relations."
In April 2008 the Commission opened up the process to amend the 2001 Regulation on access to EU documents - nearly three years on nothing has happened - all that has been agreed is a new set of “comitology” rules that will restrict access.
"The following summary sets out systematically the case law of the EU Courts (the Court of Justice and the lower court, the General Court – previously known as the Court of First Instance) concerning the EU’s access to documents regulation (Reg. 1049/2001)."
"Many contemporary debates surround the issue of the treatment of confidential information and state secrets both in the United States and the European Union 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."
European Data Protection Supervisor (EDPS) reaction: Review of relationship between transparency and data protection more urgent after Court ruling on Bavarian Lager (pdf)
In compiling his Follow-up report the Commission was invited to comment on any progress and again refused to accept that it had any obligation to list references to all documents as it is required to do under Article 11 of the Regulation: President Barroso's letter to the Ombudsman (pdf). The Ombudsman's Follow-up Report comments:
"The Ombudsman recalls that during his inquiry, the Commission consistently argued that it was going to expand the scope of its registers and led the Ombudsman to believe that the problem was mainly a technical one (i.e., the absence of a harmonised data base for the registration of documents). The Ombudsman notes, with regret, that the Commission’s new argument suggests that it has no intention of trying to complete its registers."
Tony Bunyan, Statewatch editor, comments:
"Public access to documents is the life-blood of democracy and EU public registers listing all documents provide a rich resource for public debate, discussion and participation. The Commission continued intransigence undermines the democratic process and is utterly contrary to the much cited principles of openness and transparency in the EU."
Background: Statewatch Analysis & Postscript: Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf)
"The Commission’s public register of documents is a travesty. Its rejection of the European Ombudsman’s Recommendations and failure to respond to the European Parliament’s Resolution is an instance of institutional intransigence which, in the interests of basic democratic standards, must not go unchallenged.
Tony Bunyan, Statewatch editor, comments:
"This staff document exposes the myth of those who claim that the Commission is unable to list all documents on its public register. The internal rules are clear - with some understandable exceptions - all documents should be listed. The problem is that the Commission has failed to enforce its own rules and meet its legal obligations under EU Regulation 1049/2001.
If every time an EU institution does not like the rules and the law these are changed to accommodate them - as some are proposing - it will herald an era of uncertainty and confusion undermining democratic decision-making."
"it appears that the Commission's error in the table of its Non-Paper No 3 was repeated in the Council documents."
To which the Commission responded:
"Both the complaint and the Ombudsman's analysis are based on a non-paper, which is an informal discussion document. In fact, non-papers are often used as the basis for discussion prior to the adoption of official proposals by Member States in Council. However, since non-papers are not official proposals, they cannot be the source of administrative errors."
Tony Bunyan, Statewatch editor, comments:
"So a "non-paper, which is a "document" under the EU Regulation on access to documents, is not a "document" because it is not an "official proposal" even if it leads to an error in a "non-paper" being repeated in an official Council document."
The EU Regulation on public access to documents (1049/2001) states in Article 3.a. that a: "‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility", ie: a "non-paper" is a "document".
Tony Bunyan, Statewatch Director, comments:
“There is sometimes a debate about whether a system of freedom of information requests on a specific subject is better or worse than the EU system of public registers of documents and the right of access to them. This is a unnecessary debate because both are clearly needed to ensure the greatest possible public access to EU information/documents.
Think of going into a public library. Under FOI you go to the front desk and ask for books on the topic you are interested in and the librarian goes away to find them for you. Under the public register of documents system you go into the library yourself and wander around the shelves to find what you are looking for – often making unexpected discoveries and connections.Both systems have their strengths, that is why they are complementary. If our amendment is accepted, and as long as the current definition of a “document” together with the obligation on EU institutions to provide public registers listing the documents held are maintained, then we could at last be on the road to the new era of openness that the EU has long promised.”
- European Ombudsman Decision: failure to establish proper register is "maladministration"
- European Parliament: calls on Commission to act on Ombudsman's Decision
- European Commission - the custodian of EU law - refuses to comply
- European Commission reacts by trying to change the definition of a "document"
- Indications the Commission is creating new system to "vet" documents before they are placed on its public registerSee: Ombudsman Decision Boosts Transparency in European Union, Says EFJ : "The European Federation of Journalists, the regional group of the International Federation of Journalists (IFJ) today welcomed the decision of the European Ombudsman against the European Commission for its failure to record on its public register all documents."
"If adopted in the proposed form, the proposal, however, would be more restrictive than the current rules on access to documents. The Commission proposes to exclude some document categories totally from the scope of implementation of the Regulation. The Commission also proposes that documents be accessible to the public only if they are registered and meet certain technical requirements....
The Government finds that the regulation on access to documents has worked well on the whole and that there is no reason to change its fundamental principles. The Commission proposal would, if adopted as such, constitute a step backwards."
and Opinion of the Grand Committee in the Finnish Parliament (pdf)
"The Grand Committee emphasises that if approved, the Commission's proposal would lead to a major reversal of the Union's transparency and the public's access to documents. The proposal is thus in contradiction to goals that have been repeatedly affirmed by the European Council.
The Grand Committee considers it worrying and reproachable that the Commission has advanced in support of its proposal justifications that must be considered untrue and misleading. Such conduct is liable to weaken the Commission's public credibility."
"The constant increase in the number of initial applications since the Regulation was adopted was again observed in 2007, when 4196 initial applications were registered by departments, 355 more than in 2006."
The Commission's failure to list all the documents its receives or produces is the subject of a Statewatch complaint to the European Ombudsman.
"Strasbourg, 6 October 2008: The Parliamentary Assembly of the Council of Europe (PACE) on Friday (3 October 2008) adopted unanimously a resolution expressing concern that the world’s first treaty intended to guarantee public access to information had significant flaws. In a rare step, PACE called for the Convention on Access to Official Documents to be redrafted."
The European Commission has put forward a number of changes to the Regulation on access to EU documents adopted in 2001. Controversially it proposes to change the definition of a "document" which in turn affect which would or would not be listed on its public register of documents. Does this have anything to do with the fact that the European Ombudsman has just ruled that the Commission must abide by the existing definition of a "document" in the Regulation and that it must list all the documents it holds on its public register?
"You defend the Commission’s new definition of “document” by explaining that documents drawn up by the institutions are documents as soon as they have been sent to their recipients or otherwise registered. But in fact, the Commission’s proposal does not say “sent to their recipients”, but “formally transmitted to one or more recipients” (my emphasis)."
"We, over 125 members of the global access to information community from 40 countries, representing governments, civil society organizations, international bodies and financial institutions, donor agencies and foundations, private sector companies, media outlets and scholars, gathered in Atlanta, Georgia from February 27-29, 2008, under the auspices of the Carter Center and hereby adopt the following Declaration and Plan of Action to advance the passage, implementation, enforcement, and exercise of the right of access to information"
"THE COURT AUTHORISES, IN PRINCIPLE, ACCESS TO LEGAL ADVICE GIVEN TO THE COUNCIL ON LEGISLATIVE QUESTIONS
The transparency of the legislative process and the strengthening of the democratic rights of European citizens are capable of constituting an overriding public interest which justifies the disclosure of legal advice.... The Court takes the view that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases transparency and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act.As regards, first, the fear expressed by the Council that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole. " (Court press release)
The Court's judgment means that the Council (and the Commission) can no longer claim blanket refusals for the opinions of their Legal Services on legislative matters. The Court's judgment is also interesting because it reasserted the principle of an "overriding public interest" in allowing disclosure.
Currently the Opinions of the Council's Legal Service on legislative matters carries the following warning:
"This document contains legal advice protected under Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, and not released by the Council of the European Union to the public. The Council reserves all its rights in law as regards any unauthorised publication." [BOLD emphasis in original]
- Press release
- Court judgment - full-text
- Turco press statement
Tony Bunyan, Statewatch editor comments: "The idea that Statewatch, and Steve Peers who represented us at the hearing in the European Parliament on 2 June, had not read the text is sheer nonsense. We have worked on access to EU documents for over 15 years and we know how the current definition of a "document" works in practice - and it works fine. The only institution which does not like the definition is the Commission. In response to Statewatch's complaint to the European Ombudsman, over its failure to put all its documents on its public register, the Commission President repeatedly rejected the definition of a document in the Regulation as being too wide".
Press release (pdf) and Full-text of speech (pdf)
"The Commission does not like the current definition of a document so it is proposing to change it to severely limit its scope. The current definition of a document must be left unchanged.
Nor does the Commission like the current Article 11 obliging it to list "without delay" all documents on its public register - which since 2002 it has failed to do - so the new definition of a "document" would allow it to carry on only listing a fraction of the documents it produces and receives. Article 11 must not be changed and must be implemented by the Commission.
At a stroke the the new era of openness and transparency promised in the Amsterdam Treaty would be dealt a fatal blow and we will be back in the age of the "dinosaurs". "
Note on "dinosaurs": The forces for secrecy in the EU - were referred to by Mr Söderman, then the European Ombudsman, at a Conference in Brussels on 26 April 1999 as the "dinosaurs" - who under the cloak of implementing the Amsterdam Treaty wanted to turn the clock back so that the institutions could control what documents are released.
Tony Bunyan, Statewatch editor, comments:
"Mr Barroso says "the access to document rules are working well. These changes seek to improve the access to documents for European citizens". While Commissioner Wallstrom says "Access to documents is an essential tool for democracy and now we want to improve it".
The rules on access are not working well and these changes will takes us several steps backwards. For example, the Commission does not agree with the definition of a "document" in the Regulation, so it wants to change it. The Commission's public register of documents is a joke so now it wants to change the rules. There would be a longer list of exceptions to refuse access, including mandatory exceptions where applications do not even have to be considered. And would leave in place the rule which allows the institutions to deny access to documents on measures about to be adopted in Brussels - a practice that would never be tolerated at national level.
The Amsterdam Treaty was agreed 11 years ago (1997) and was meant to herald a new era of openness and transparency – we only got half of the loaf and have been waiting for the other half, now the Commission wants to takes away some of this.”
See: Statewatch analysis of the proposals
- Viewpoint by Tony Bunyan: More openness or just a drop in the ocean? The need for Freedom of Information in the EU
- The right to know or the right to try and find out? The need for an EU freedom of information law, by Ben Hayes
- "Unaccountable Europe" by Tony Bunyan
Tony Bunyan, Statewatch editor, comments:
“The scope of the Commission’s amendments and its consultation do not consider many of the fundamental questions posed by civil society and the European Parliament.
Perhaps the most crucial is the public’s right to know what is being discussed before it is adopted in Brussels – a practice that would never be tolerated at national level.
Moreover, two of the Commission amendments are highly retrogressive. The new definition of a document would mean that if an official does not register it then it is not a “document” – a recipe for abuse. And the obligation of institutions to give public access to the full text of documents would be limited to legislative measures – and not cover the hundreds of thousands of other documents produced and received.
The Amsterdam Treaty was agreed 11 years ago (1997) and was meant to herald a new era of openness and transparency – we are still waiting for this to happen.”Documentation
- Adopted version: Explanatory Memorandum and Annotated text
- Penultimate version: Commission proposals - Consolidated text
- Penultimate version: Commission Explanatory Memorandum
- Penultimate version: Memorandum to the Commission
- Penultimate version: Table comparing current text to proposed changes
- Full background and documentation since 1993 is on the Statewatch Observatory: FOI in the EU
"350 (original language) sensitive documents were produced in the period concerned, 26 classified as "SECRET UE" and 324 as "CONFIDENTIEL UE". Of these, 3 "SECRET UE" document and 61 "CONFIDENTIEL UE" documents are mentioned in the register, in accordance with Article 9(2) and Article 11(2) of Regulation No 1049/2001."
Of the 350 classified documents produced during the year on 64 were listed on the Council's register of documents.
In addition, applications were examined for access to 802 documents classified as "RESTREINT UE" - 35,3 % concerned European Security and Defence Policy, 28% Common Foreign and Security Policy CFSP and 25.5% Justice and Home Affairs.
The top issue for which documents where applied to the Council for access to was Justice and Home Affairs: 20,1 % in 2004 to 22,5 % in 2005 and 24,5 % in 2006, reaching 26,8 % in 2007.
"The European Ombudsman, P. Nikiforos Diamandouros, has underlined the importance of non-governmental organisations (NGOs) in pointing out possible instances of maladministration in the EU institutions. Over the past ten years, the Ombudsman's office has received almost 1 000 complaints from NGOs and associations. They included alleged maladministration concerning environmental projects, late payment for EU contracts, and lack of transparency in the EU institutions. Among the NGOs that complained were Statewatch, Corporate Europe Observatory, and the European Citizen Action Service (ECAS)."
The European Ombudsman's Decision says that:"In the Ombudsman’s view, the reasons given by the Commission to explain its failure, which refer to administrative and organisational constraints, do not show that there was an objective impossibility for the Commission to comply with its legal obligation (ultra posse nemo obligatur)" and
"The Ombudsman considers that the instance of maladministration revealed by the present inquiry is especially deplorable since the publication of reports is a key mechanism of accountability to, and communication with, European citizens. The Commission should set a good example to the many new Community Agencies which have recently been established by giving high priority in future to the timely publication of reports."
This is the first of two complaints lodged by Statewatch against the Commission. Previously Statewatch won eight complaints taken to the European Ombudsman against the Council of the European Union.
EU: Statewatch lodges two complaints against the European Commission with the European Ombudsman (press release, full-text, pdf, 19 April 2007): - the Commission has failed to maintain a proper public register of documents with only a fraction of those produced listed; - the Commission failed to produce its annual report on access to documents for 2005 in the year 2006; - Statewatch says both are breaches of the Regulation and therefore cases of maladministration.
"The CFI found that the Commission does not have to give access to pleadings before the oral hearing, but must disclose pleadings after the hearing unless it cites a specific reason as to why such a disclosure would prejudice its position before the Court."
"Many documents are not on the official registers, information is often not fully available or difficult to find whilst internal procedures in some institutions are hard to follow."
"The Regulation should be revised to ensure the principle of full access to all documents. It is untenable that the Council, which is the EU co-legislating body, still denies full access to documents discussed in its working groups, such as amendments proposed by Member States representatives, positions and voting records or legal opinions which makes it impossible to follow its decision-making process."
"The Commission too should keep its register up to date and complete, while the EP should further improve the publication of its activities, such as video-streaming on the internet of its committees' debates and enhanced transparency of first-reading agreements".
He has drafted a response to the Commission's Green Paper to be discussed in the Committee on Covil Liberties (LIBE): Working document (pdf)
“The European Commission is not above the law it is the custodian of EU law, responsible for ensuring it is properly implemented. This makes it all the more reprehensible that under the Regulation on access to documents the Commission has failed to maintain a proper register of documents and failed to publish an annual report for 2005. Open, transparent and accountable decision-making is the essence of any democratic system. Secrecy is its enemy and produces distrust, cynicism and apathy among citizens and closed minds among policy makers. The European Commission must be called to account for its actions or rather its failures to act”
a) Exchange of EU classified information (EUCI) with third countries and organisations (8 September 2006)
b) EU: Council Decision adopting the Council's security regulations (28 February 2001)
c) NATO: Security within NATO (17 June 2002) Thanks to FOI Advocates Network
- less than 50% of Council documents available to citizens
- European Commission's register of documents "a disgrace"
- speech by Tony Bunyan to the European Parliament"It is ten years since the Code on access to Council and Commission documents was introduced in 1993 and it is six years since Article 255 in the Amsterdam Treaty allegedly "enshrined" the citizens' right of access. Yet even now less than 50% of the contents of documents on the Council's public register have been released and the Commission's public register is absolutely useless. How much longer are we going to have to wait for freedom of information in the EU?"
http://www.ofj.admin.ch/themen/oeffprinzip/bot-d.pdf (german)
http://www.ofj.admin.ch/themen/oeffprinzip/bot-f.pdf (french)
- Council of European Union says it has no choice but to back US veto
- Refusal of access follows two successful complaints to the European Ombudsman
- Decision would exclude from access any document on international policy vetoed by third parties
- the first major problem is going to be what will, and what not, be on the public registers of documents
- the second will be the exclusion of "internal documents"
- the third will be the right of "third parties" (like the US) to veto access to EU documents
1.The new Regulation (1049/2001) on access to documents (pdf file)
2. Council's new Rules of Procedure (adopted 29 November)
3. European Parliament report amending its rules of procedure (adopted 13 November)
Statewatch launches Freedom of Information in the EU site with all the background news and documents on access to documents plus a new Observatory on case law: FOI
"Call for an Open Europe": over two hundred sign up
Support for openness: from 72 individuals and organisations across the EU
- Council, Commission and EP Committee agree "compromise/common text"
- Civil society groups reject "deal" between Council and European Parliament
- Council and EP rapporteurs agree "common text"
- Civil society groups reject "deal" between Council and European Parliament
The European Parliament has formally decided to take the Council of the European Union to court over the "Solana Decision": Green/EFA press release Council offer deal to head off court action by EP: Compromise
dealA detailed analysis by Statewatch shows that the European Commission and the Council want less access to documents than at present: Analysis
Germany and France lead fight for more secrecy by EU governments and UK sits on the fence - Council's position on access to documents even worse than the Commission's: Council
Sweden Swedish government decided (28.9.00) to back Netherlands court case
Finland : the Finnish government to back the Netherlands in their court case
Netherlands to take EU to court the Netherlands government decides (22.9.00) to take the Council of the European Union to court over the "Solana Decision"
EP Court action The European Parliament votes to take to take the Council to court over the "Solana/NATO Decision
Press release: Green/EFA group in EP
Opinion "Opinion" article in the Irish Times (23.9.00)
NATO letter Snub to European Parliament reveals more NATO demands
MEPs demand action EP decision with full-text documents
Solana's coup imposes EU security state: EU governments adopt the "NATO/Solana" amendments to the Decision on public access to documents (14.8.00) and it came into effect on 23 August:
Text of the Decision
Analysis The 1993 Decision as now amended by the Decision of 14 August 2000
Classified documents Council Decision of 19 December 1999 overturned
International Federation of Journalists: "Journalists condemn "Summertime Coup": IFJ
The UK parliament issues critical report on Commission's proposal: Report
NEW STATEWATCH COMPLAINTS TO THE EUROPEAN OMBUDSMAN OVER ACCESS TO EU DOCUMENTS
NEWS, DEVELOPMENTS & DEBATES
THE NEW PROPOSED REGULATION ON PUBLIC ACCESS TO DOCUMENTS
THE EUROPEAN COMMISSION's UNPUBLISHED CONSULTATION PAPERS ON THE PROPOSED REGULATION
THE CURRENT CODES OF ACCESS TO DOCUMENT FROM THE COUNCIL and COMMISSION which were adopted in December 1993
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