Access to documents and FOI in the EU
Statewatch: Observatory on access to EU documents: 2008-2009
Updated 29 September 2008
On 30 April 2008 the Commission proposed a series of amendments to the Regulation on access to EU documents (1049/2001). The measure will be adopted under "co-decision" whereby the Council of of the European Union (the 27 governments) and the European Parliament have to agree on any changes. In due course the European Parliament will adopt a report on the Commission's proposals and a Council Working Party will separately produce its reactions too - the EP and the Council may suggest additional changes to the text.Basic documents: Proposed amendments by the European Commission: Explanatory Memorandum and Annotated text(pdf) and Regulation 1049/2001/EC Regulation 1049/2001/EC (pdf): in operation since 2001 and ongoing
This Observatory will put on record all the developments: News, analyses and documentation. Full background documentation since 1993 is available on our Observatory: Freedom of Information (FOI) in the EU this includes: Key texts: Resources on EU access to documents, Analyses and critiques, Observatory on the adoption of Regulation 1049 and an online "book": Secrecy and openness in the European Union - the ongoing struggle for freedom of information by Tony Bunyan (covering the period 1993-2003). Contributions should be sent to: office@statewatch.org
News and analyses
EU: Access to documents in the EU: When is a “document” not a “document”? (pdf) Analysis by Tony Bunyan.
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?
"as a general rule it was not appropriate for the same authority both to chair the body responsible for the preparation of a legal act (the Council General Secretariat in the present case) and to implement that act (the Council). "
This was an attempt to shift the lead role in setting the agenda and conducting negotiations from the Council's permanent General Secretariat to the Council Presidency (ie: a member state government). Though the Antici Group did not agree to set up an ad hoc working party it did take overall control away from the Council General Secretariat - decisions on contacts and consultations would be agreed jointly by the Council Presidency and the Chair of the Working Party on Information and that negotiations with the European Parliament would be conducted by the Chair of COREPER (the Head of the permanent Brussels-based representation of the member state holding the Council Presidency).
Note: The Antici Group (named after its Italian founder) is made up of assistants to the Permanent Representatives and a Commission representative, a member of the Secretary-General's Private Office and a member of the Council Legal Service. The Group is responsible for deciding on the organisation of Coreper II proceedings. The meeting, which usually takes place on the afternoon before Coreper, is chaired by the Presidency 'Antici'.
"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)."
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.
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.
"The European Ombudsman, P. Nikiforos Diamandouros, has launched a consultation process within the European Network of Ombudsmen on access to information contained in databases. This follows a complaint from a Danish journalist about the refusal of the European Commission to disclose data on beneficiaries of EU agricultural subsidies. The Commission justified its refusal on grounds of confidentiality. Furthermore, it argued that the EU's rules on access to documents apply to databases only if the data can be easily retrieved.
The Ombudsman was not convinced by this approach. He therefore contacted his colleagues in the Member States to find out about "best practices" at the national level aiming to ensure maximum public access to databases. This consultation is particularly important given that this issue at stake forms part of the current debate on the reform of the EU's rules on access to documents."
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.”
- 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.
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: NB based on old version - see above for final version and EM:
- 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 changesDocumentation
- Statewatch Analysis June 2008: Proposal on access to documents: Article-by-Article commentary (pdf) Analysis of the Commission's proposed changes to the Regulation on access to EU documents (1049/2001) by Professor Steve Peers, University of Essex.
- Proposed amendments by the European Commission: Explanatory Memorandum and Annotated text(pdf)
- April 2008: Penultimate version: Commission proposals - Consolidated text
- Commission Public consultation website (2007)
- Green Paper (April 2007)
- Submission to the consultation (link)
- Commission summary of the results of the consultation (pdf)- Regulation 1049/2001/ECRegulation 1049/2001/EC (pdf): in operation since 2001 and ongoing
- 1993 Code of access to Council and Commission documents, 20.12.93
European Parliament
- Marco Cappato: Working document no 1: on 2006 annual report on access to EU documents: Rapporteur (22.8.07)- Michael Cashman Report: Access to the institutions' texts: European Parliament resolution with recommendations to the Commission on access to the institutions' texts
Council positions
ForthcomingEuropean Ombudsman
European Ombudsman: European Parliament (EP): Hearing 2 June 2008:
Press release (pdf) and Full-text of speech (pdf)
European Data Protection SupervisorOpinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Press release plus Opinion, pdf)
Civil society comments and critiques
- EU: FOI in the EU: When is a “document” not a “document”? (pdf) Analysis by Tony Bunyan. 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?
- Statewatch Analysis June 2008: Proposal on access to documents: Article-by-Article commentary (pdf) Analysis of the Commission's proposed changes to the Regulation on access to EU documents (1049/2001) by Professor Steve Peers, University of Essex.
- Comments on the definition of a "document" in the Commission proposal: Back to the age of the "dinosaurs"? by Tony Bunyan, Statewatch editor
- Statewatch analysis of the proposed changes to the Regulation on access to EU documents by Tony Bunyan with additional comments from Steve Peers, 20 May 2008- ECAS Report on the hearing in the Eurpoean Parliament on 2 June 2008
- Statewatch Analysis June 2008: Proposal on access to documents: Article-by-Article commentary (pdf) Analysis of the Commission's proposed changes to the Regulation on access to EU documents (1049/2001) by Professor Steve Peers, University of Essex.
Statewatch
European Federation of Journalists (EFJ)
wobbing Europe
Corporate Observatory Europe (COE)
European Citizens Action Service (ECAS)
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