Statewatch
Observatory: the Regulation on access to EU documents: 2008-ongoing

with the following partners: European Federation of Journalists (EFJ), Corporate Observatory Europe (CoE) and European Citizens Action Service (ECAS).
Updated 28 May 2014 Bookmark and Share

EU: Council of the European Union: EU Human Rights Guidelines on Freedom of Expression Online and Offline (46 pages, pdf) Drawn up by the Working Party on Human Rights (COHOM) for the Political and Security Committee (PSC). Tony Bunyan Statewatch Director, comments: "Interesting principles set out for the rest of the world which it would be good to see in operation at "home" in the EU"

"The right to freedom of expression includes freedom to seek and receive information. It is a key component of democratic governance as the promotion of participatory decision-making processes is unattainable without adequate access to information." [emphasis added]

EU: Council of the European Union: COUNCIL SEEKS TO AVOID OBLIGATION TO MAKE MEMBERS STATES' POSITIONS PUBLIC FOLLOWING COURT RULING and to include MEMBER STATE NAMES ONLY "WHERE IT IS DEEMED APPROPRIATE": Drafting of documents relating to legislative activities (13 May 2014, pdf)

In reaction of the ECJ decision on the Access-Info judgment (pdf) stating that on legislative measures the positions of EU Member States (governments) should be made public with some very limited exceptions the current proposal of the General Secretariat of the Council to be discussed by COREPER (the high-level committee of permanent national representatives based in Brussels) is that: Member State' names should be made public regarding on-going legislation "where it is deemed appropriate". The General Secretariat (full-time Council officials) argue that this its preferred option is:

"Option 3 appears to be a more suitable option as it allows striking a good balance between the interest in receiving full information and keeping complete records and the interest in protecting the Member States' negotiating flexibility and thus the effectiveness of the Council's decision-making process." [emphasis added]

Tony Bunyan, Statewatch Director, comments: "The Council has been deliberating since November last year on how to get around the Court's judgment and is now proposing to continue its existing practice of deciding for itself when and if to make public the interventions taken by national governments on new measures. At the same time in Footnote 6 it is seeking to further entrench the secrecy of its decision-making by emphasising that LIMITE documents (which are not classified documents) are for internal circulation only and should not be made public. The three documents here are LIMITE documents and are made available in the public interest, namely that the public have a right to know what is being decided in their name by their governments." .

Previous documents: Public access to documents (LIMITE, 17177/13, 29 November 2013, pdf) and Document no: 7356-14 (6 March 2014, pdf)

STATEWATCH: ACCESS TO EU DOCUMENTS: Calling the agencies to account: Frontex, Europol & Eurojust: Statewatch complaints & Ombudsman's own initiative Inquiry

"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."

EU: SECRECY: Statewatch Analysis: Constructing the secret EU state: “Restricted” and “Limite” documents hidden from view by the Council (pdf)

• Over 117,000 “RESTRICTED” documents produced or handled by the Council since 2001 but only 13,184 are listed in its public register of documents
• 103,839 “RESTRICTED” documents not listed in the Council’s public register due to the “originators” right of veto?
• The Council seeks to stop the publication of unreleased “LIMITE” documents, which are defined as “sensitive unclassified documents”
• The Commission has failed to implement the Lisbon Treaty to ensure that all legislative documents are made public as they are produced - this means that 60% of Council documents relating to legislative decision-making are made public after “the final adoption” of measures
• The Council uses Article 4.3, the “space to think”, to refuse access to 50% of requests for access to legislative documents under discussion

Tony Bunyan, Statewatch Director, comments:

“The Council have constructed a two-tier system of secrecy to keep from public view thousands and thousands of documents. This has been compounded by the failure of the European Commission to put forward proposals to implement the provision in the Lisbon Treaty to make all documents concerning the legislative procedure public.

In place of the need to deepen democratic openness and accountability in EU the Council has entrenched a system of secrecy based on its discretion to decide whether and when to make documents public.

The result is that the European legislature – the Council of the European Union and the European Parliament – meet in secret trilogues to decide over 80% of new laws going through the EU.”

EU: SECRECY: Statewatch Analysis: Statewatch, the European Commission and the Dutch Senate (pdf)
• Parliamentary sovereignty in the EU under threat?
• The EU-USA agreement on the exchange of personal data, the later US intervention on draft new EU Data Protection Regulation and the Snowden revelations

Tony Bunyan, Statewatch Director, comments:

“Subsequent events have shown that it was clearly in the public interest to make public the inadequate EU negotiating position back in 2010. The USA’s hostile reaction to the draft new EU Regulation on data protection in 2011 and the Snowden revelations from June 2013 demonstrate the need for binding privacy rights in the EU that cannot be negotiated away in secret meetings.

This case highlights the limits that have been put in place to try and restrict the sovereignty of national parliaments’ to decide for themselves what documents can be placed in the public domain in order that the people can understand what is being decided in their name.”

EU: Secrecy: Secret rules despite Court judgment (Wobbing.eu): by Staffan Dahllöf:

"EU-ministers have postponed implementing a judgement on transparency and rejects to disclose alternatives discussed – and leaked. Six member states vote against secrecy. The European Ombudsman is asked to step in."

EU: ACCESS TO DOCUMENTS: European Parliament: Conference: Transparency will save the EU: Restoring trust through public access to documents: principles, practice and challenges (pdf) EP: Tuesday 1 April 2014, 14.00-16.00, Room: ASP 1 G2. A frequent criticism levelled at the EU is that it is still a bureaucratic and diplomatic construction where procedures are opaque and culture secretive. This conference will examine why the Reform initiated thirteen years ago is still blocked and what can be done to ensure that the EU is open and transparent.

EU: European Parliament: As adopted by plenary on: Report on public access to documents (Rule 104(7)) for the years 2011-2013 (pdf): Rapporteur: Sophia in ‘t Veld

European Parliament: “Transparency is an essential element of a lively democracy” (pdf). Record of a discussion between Rapporteurs on access to EU documents. Renate Sommer is parliament's EPP group shadow rapporteur says: "In order to avoid outside influence on the legislative process at this stage trilogues should not be public and documents relating to them should not be disclosed." while Michael Cashman is parliament's S&D group shadow rapporteur says: "the European commission and the European council, with the help of some elements of the European People's Party and, rather contradictorily to their continuous attack on the EU, the UK Independence Party, continue to think that we should legislate behind closed doors." and Cornelis de Jong is parliament's GUE/NGL group shadow rapporteur: "If it is already difficult for MEPs to grasp what decisions are made on the internal arrangements in the EP, for the ordinary citizen this is a complete black box."

EU: ACCESS TO EU DOCUMENTS REGULATION: Council of the European Union puts off moving to an open EU yet again: See: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents - State of play (pdf) After nearly five years of stalemate, an "institutional impasse", the Council of the European Union (EU Member State governments) proposed that Regulation 1049/2001 on public access to EU institution documents should be amended but limited to modifying it to "take into account the provisions of the Lisbon Treaty". This is a reference to the Commission proposal of 2008 which only makes one change - to extend the Regulation to cover EU agencies.

The Commission proposal ignores the obligation to implement Article 15 of the Lisbon Treaty which states that the Council and the European Parliament shall publish "documents relating to the legislative procedures" which would require the removal of Article 4.3 of the Regulation that allows the Council to refuse access where disclosure could "seriously undermine the institutions decision-making process, unless there is an overriding public interest in disclosure". The Council never agree to release a document on public interest grounds and 40.9% of all initial applications are refused under Article 4.3 plus part of 25.3% of refusals for "several reasons together" (2012 Annual Report). See: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments and Secret trilogues and the democratic deficit by Tony Bunyan

Tony Bunyan, Statewatch Director, comments: "The European Parliament's rapporteur, Michael Cashman MEP, is quite right to ask the Council, as a minimum, to commit itself to "new arrangements for granting access to documents" and putting documents online.

The failure of the Commission to propose, and the Council to support, the full implementation of the Lisbon Treaty by making documents related to the legislative procedure public as they are produced means we have secret documents being discussed in secret trilogues - a process that excludes national parliaments, citizens and civil society. This makes a travesty of democratic accountability."

EU: ACCESS TO DOCUMENTS: Access to documents: Parliament calls for immediate action to break the deadlock (Press release, pdf): "The Commission should engage fully in the amending and ‘Lisbonising’ of the 2001 regulation on access to documents, or take "any appropriate measures to break the deadlock", and Council should immediately restart debates to adopt its first-reading position and to continue negotiations, ask MEPs." The resolution was adopted by 333 votes in favour, 128 against and 50 abstentions.

EU: REGULATION ON ACCESS TO EU DOCUMENTS: The Council of the European Union has carried out a survey of Member States asking three questions. The first, and key, question concerns the definition of a "document" (Member States operate a different system based on the provision of "information") and the so-called "space to think" (in order to keep documents secret in the decision-making process): Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents - Discussion paper (pdf).

Tony Bunyan, Statewatch Director, comments:

"If anyone thought that EU Member States would provide examples of how to improve the Regulation of access to EU documents (1049/2001) this survey shows how wrong they are. For example, they operate systems based on the provision of "information" not that of access to documents - which has been in place in the EU for nearly 30 years. And they use very restrictive notions of the "space to think" including denying access where it would "give rise to misunderstandings"."



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. Basic documents: Commission: Proposed amendments: Explanatory Memorandum and Annotated text(pdf); European Parliament: Report on the proposal for a regulation regarding public access to European Parliament, Council and Commission documents (recast) (adopted in December 2011) and: Regulation 1049/2001/EC Regulation 1049/2001/EC (pdf): in operation since 2001 and ongoing. Full background documentation since 1993 is available on our Observatory: Freedom of Information (FOI) in the EU

News and analyses: December 2011 ongoing (followed by Council documents from this period)


EU: REGULATION ON ACCESS TO DOCUMENTS: Final "State of play" from Danish Council Presidency: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (pdf). Explains the Presidency perspective on the failed attempt to amend Regulation 1049. It presented an "adjusted" draft Council position but the "WPI [Working Party on Information] did however not share this assessment" "Some delegations" wanted to abandon the process, and "others" wanted a "limited package" covering the Arhus Convention, data protection, information officers and "improving" access to legislative documents "based on the Commission 2008 proposal.

The EU institutions are left with the dilemma of implementing the Commission's 2011 proposal to "Lisbonise" the Regulation by formally extending the scope of the Regulation to cover EU agencies and bodies but even this is contentious, see: See Statewatch Analyses: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf) and Secret trilogues and the democratic deficit (pdf)

EU: REVISION OF THE REGULATION ON ACCESS TO EU DOCUMENTS: Talks collapse on access to EU documents (euobserver, link):

"The Danish presidency has abandoned attempts to agree new rules on access to EU documents. It took the decision on Tuesday (12 June) after EU countries and the European Commission last week rejected its latest draft of the law. It still aims to get MEPs to back a commission proposal to extend existing rules on freedom of information to all EU institutions - including its 31 agencies - however....The incoming Cypriot presidency might pick up where Denmark left off. But the failed talks have left behind a prickly atmosphere."

Tony Bunyan, Statewatch Director, comments:

"This is a victory for common sense, all the alternatives on the table would have fundamentally undermined openness. However, the intention of the Council Presidency to push through the Commission's 2011 proposal to "Lisbonise" the Regulation is not as simple as they seem to think.

The 2011 proposal would simply extend the scope of the Regulation to EU agencies and bodies but this does not meet the requirements of the Lisbon Treaty. Under Articles 15.1 to 15.3, the Council and the European Parliament have to meet in public when considering draft legislative acts and to ensure the publication of the documents relating to legislative procedures. This gives the European Parliament a real opportunity to insist that the Treaty obligations are fully met.

All the documents concerning legislative procedures have to be made public, including those discussed between the two legislatures (the Council and the European Parliament) in 1st and 2nd reading trilogue meetings which are currently kept secret."

See Statewatch Analyses: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf) and Secret trilogues and the democratic deficit (pdf)

EU: REGULATION ON ACCESS TO DOCUMENTS: Council Presidency proposals rejected by Working Party on Information: Council of the European Union: Latest draft Council position to be discussed in the Working Party on Information on Friday 8 June (dated 4 June 2012, pdf) Statewatch analysis of this latest draft of the Access to Documents Regulation by Steve Peers, Professor of Law, Law School, University of Essex were rejected in the Councils Working Party on Information (WPI) on Friday 8 June (see wobbing report, link).

The re-drafted Council position (DS 1397-12, above) was said to move too far to meet the European Parliament's views by some Member States and not far enough for others in the WPI. The Council Presidency could revert to its previous draft Council position: Consolidation text of the Council of the European Union's position as at 5 June (prepared by Statewatch, pdf) and Statewatch Analysis: Revision of the Regulation on access to documents: Comments on the Council’s Informal Drafting Note (pdf) by Professor Steve Peers, but this is almost certain to be rejected by the European Parliament.

Alternatively the Council Presidency could drop the current controversial proposals and opt instead to go ahead with an apparently simple change in the Commission's 2011 Proposal to "Lisbonise" the current Regulation but even this could prove to be controversial as the Commission simply intends to extend the Regulation to EU agencies and bodies. However, this was discussed at a hearing in the European Parliament last year and many think that proper "Lisbonisation" goes further than this, see: The case for the repeal of Article 4.3

The Danish Council Presidency finishes at the end of June, when Cyprus takes up the mantle until December.

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EU: REGULATION ON ACCESS TO DOCUMENTS: Council of the European Union: Latest draft Council position to be discussed in the Working Party on Information on Friday 8 June (dated 4 June 2012, pdf)

EU: REVISION OF THE REGULATION ON ACCESS TO DOCUMENTS: Statewatch Analysis: Revision of the Regulation on access to documents: Comments on the Council’s Informal Drafting Note (pdf) by Professor Steve Peers, Professor of Law, Law School, University of Essex. See below.

EU: REVISION OF THE REGULATION ON ACCESS TO DOCUMENTS: Talks start between the Council and the European Parliament: Last week there was a "technical meeting" between between the EP Rapporteur, Michael Cashman MEP and Mrs Jaatteenmaki MEP from the parliament, the Council Presidency and European Commission. This was not a full 2nd reading "trilogue" involving the Rapporteur and Shadow Rapporteurs from each of the political groups. The Council presented an: Informal Drafting Note (pdf).

One of the changes concerns "Direct access to documents" (Article 12 (or new Article 3a). This appears to meet the Lisbon Treaty and the European Parliament's concerns for full access to all documents concerning the legislative process. However, this would be subject to the following exceptions: a) Article 4 (ie: public security and international relations), b) Article 9 Classified documents (including "Restricted" documents who disclosure could be "disadvantageous", c) the Council (and Commission's) new Article 3a which redefine a "document" and would enormously limit access only to those that are "finalised" (ie: no previous drafts would be public) and d) Article 4.3 where access to documents can be refused (as they regularly are) were disclosure could "undermine" the decision-making process. (More follows)

Tony Bunyan, Statewatch Director, comments:

"This proposal, together with a new inter-institutional website, would appear to be a big step forward. But once all the exceptions and grounds for not including swathes of documents is taken into account it would lead to a nearly meaningless change and leave the people and civil society in the dark about the real issues and debates that have taken place behind closed doors."

The political groups in the European Parliament are now commenting on this Council Note. On the Council side its position will next be discussed in the Working Party on Information on 8 June and then in COREPER on 13 June. The Danish Council Presidency says it wants to complete the whole process by the end of June (a usual ploy by all of the six-monthly Council Presidencies)

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EU: REVISION OF THE REGULATION ON ACCESS TO DOCUMENTS: Consolidation text of the Council of the European Union's position as at 5 June (prepared by Statewatch, pdf): This consolidated version (Statewatch: 4.6.12) of the Council’s proposed amendments to Regulation 1049/2001 is based on its document no: 9441/12 and has been updated to include the revised Article 4a (agreed by COREPER). The Commission and Parliament proposals for Articles 10 and 16 have been added as the latter contains a “Red Line” issue (which the Council chose not to amend). No amendments are proposed for Articles 9, 11 and 13 by the Commission or Council. See: Statewatch Analysis: Revision of the Regulation on access to documents: Comments on the Council’s Informal Drafting Note (pdf) by Professor Steve Peers

EU: ACCESS TO DOCUMENTS REGULATION: Council of the European Union seeks to overturn "Turco judgment" which would allow access to legal advice to the Council concerning legislative issues: The Minutes of COREPER II on 8, 10 and 14 May 2012 (the high-level meeting on Member Sates' permanent representatives in Brussels) state:

"Recast of Regulation (EC) o 1049/2001 regarding public access to European Parliament, Council and Commission documents (First reading)
- Preparation of informal trilogues: The Committee agreed to mandate the Presidency to initiate informal trilogues with the European Parliament and the Commission with a view to achieving a political agreement on a pre-negotiated Council position at first reading.

The Committee agreed by qualified majority the draft mandate set out in the fourth column of document 9441/12 with the following modifications:

- Article 4a, paragraph 1: "Access to legal advice relating to issues which are the subject of a decision-making process until the relevant act becomes definitive or regarding a question of law which has not been decided, in last instance, by the Court of Justice, shall be presumed to undermine the protection of legal advice. The applicant may demonstrate that there is an overriding public interest justifying the disclosure of the documents.";

- Article 4a, paragraph 3: "For the purpose of this article, the principles underlying this regulation do not in themselves constitute such an overriding public interest.".

SE delegation did not agree with the contents of the mandate, as set out in 9441/12, and made the following statement : "The compromise text would lead to less transparency in the EU. Hence, Sweden cannot endorse the text." EE, FI and NL delegations aligned themselves to this statement."
[emphasis added]

See: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (first reading) - Preparation of informal trilogues (Council doc: 9941-12, pdf)

EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Council seeks to re-write the definition of a "document" after 19 years: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (first reading) - Preparation of informal trilogues (pdf). Since 1993 the definition of a "document" has been that a: "document shall mean any content whatever its medium" and this is in the current Regulation. However, the Council intends to keep this general definition (Article 3) but to add Article 3a: "Documents subject to this Regulation": which says a document becomes subject to this Regulation (ie: the whole Regulation) when: "it has been drawn up by an institution and either formally transmitted to one or more recipients, submitted for filing or registration, approved by the competent official, or otherwise completed for the purposes for which it was intended" (emphasis added) In simple terms a "document" is only really a "document" when it is finalised (all the drafts and discussion prior to this are not "documents") - this is the same definition, which was widely criticised, first put forward by the Commission in 2008. .

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."

EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Statewatch challenges Council secrecy on access to EU documents on the revision of the Regulation: Letter from the Council refusing access to three documents concerning the Council's discussions on revising the Regulation on access to EU documents (pdf) in response a: Confirmatory application by Tony Bunyan, on behalf of Statewatch (pdf)

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."

EU: ACCESS TO EU DOCUMENTS: Presidency criticised: Even worse than the Commission: The Danish EU-presidency has failed to unite member states on new access rules for the EU-institutions. Sweden, Finland and possibly others will refuse to back a mandate to negotiate a new regulation (Wobbing.eu,link)

"Its no secrecy that member states have different opinions on access rules. But now the split comes out in the open. Swedish minister of justice Beatrice Ask (conservative) has instructed the Swedish EU-ambassador not to endorse a negotiating mandate proposed by the Danish presidency.

Minister Ask explains why in a comment to this website: ”If the mandate would give space for improved openness I would be the first to vote yes, but I believe that would be wishful thinking as things stand right now. The mandate will pull in the opposite direction, and there is even a risk that it is worse than the Commission's proposal from 2008.”

It is understood that the main issues for the Council of the European Union are:

- Definition of a document. A new article defining when a document is finalized and thus accessible has been added. The article says a document is included ”when finalized for the purpose it was intended.” - this is the same as the Commission's proposal to replace the definition of a "document" in place since 1993.

- Whole categories of documents are to be kept outside the scope - documents on infringement procedures (member states accused of breaking EU-law), on competition (cartels, mergers and state-aid cases) and documents related to court proceedings.

- Advice from legal services on disputed matters are also to be kept outside the scope – an exemption judged by the Court of Justice to be unfounded according to the present regulation.

- Data protection likely to overrule the right to access.

- Veto for Member States on release of documents sent to the institutions

EU: Council of the European Union: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents - Meetings on 9 and 27 March 2012 of the Working Party on Information (8410/12, pdf)

EU: ACCESS TO DOCUMENTS REGULATION: Secretive talks on access rules (Wobbing.eu, link): "Nicolai Wammen, minister of European affairs (Social Democrat) explains in a diplomatic language: ”Negotiations will be very difficult. There are very different positions in this case, both within the Council and the Parliament. As I see it the only way forward is to show a pragmatic and realistic approach. We are no having talks with all actors and we encourage forcefully to show flexibility and a will to compromise.” This might look lika an undramatic mumbo-jumbo talk. But the statement confirms that the presidency have had bilateral talks with all member states even before the formal discussions in the Council has begun.

EU: REGULATION ON ACCESS TO EU DOCUMENTS: Report on debate in the European Parliament: Proposal for a Regulation regarding public access to European Parliament, Council and Commission documents (recast) - Outcome of the European Parliament's first reading (Strasbourg, 12 to 15 December 2011) (8610/12, pdf)

Council of the European Union: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (7995/12.pdf)

EU: Revising the Access to documents Regulation saga - The beginning of the endgame

- "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)

EU: Council of the European Union: Council Presidency Note to the Working Party on Information, 13.2.12 (EU doc no: 6439/12, pdf)

EU: Council of the European Union: Proposal for a Regulation of the European Parliament and of the Council
amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents
(14549/11, pdf). Council backs quite inadequate Commission proposal to bring the Regulation on access to EU documents (1049/2001) in line with the Lisbon Treaty which ignores Article 15 of the Treaty. See also: Regulation on public to documents: the European Commission is the problem: the Commission 2011 proposals fails to abolish Article 4.3 of the Regulation in line with the Lisbon Treaty: the institutions' "space to think" in secret: "for two years the Commission has "sat on its hands" and failed to respond to the "institutional impasse" between the Council and the European Parliament, it should now produce a completely new "Lisbonised" proposal" (Tony Bunyan)

EU: REGULATION ON ACCESS TO EU DOCUMENTS: European Parliament: Public access to documents: towards more transparency in the EU (Press release, pdf): The report by rapporteur Michael Cashman MEP was passed with 394 votes in favour, 197 against and 35 abstentions.The report was opposed by the PPE (Centre-right, conservative group).

The European Commissioner Maroš Šefèoviè responsible for the dossier maintained the Commission's long-standing "head in the sand" position and told the plenary: "This agreement risks taking time and I am afraid that, given the amendments proposed in the report, agreement on changes to the regulations is not within reach. I cannot of course anticipate the position that the Council will take on the proposed amendments but many of them cannot be accepted by the Commission."

See: Report on the proposal for a regulation regarding public access to European Parliament, Council and Commission documents (recast)

Council documents: December 2011 onwards


- Council: Meetings on 9 and 27 March 2012 of the Working Party on Information (8410/12, pdf)

- Council: Council Presidency Note to the Working Party on Information, 13.2.12 (EU doc no: 6439/12, pdf)

- Council: Reaction ot Commission's "LIsbon" amendment: Reaction (14549/11, pdf)

News and analyses: pre- December 2011


EU: Regulation on public access to documents: the European Commission is the problem 

- in its 2008 proposal the Commission put secrecy above openness by increasing the power of the institutions to refuse access to documents above establishing the public's right to know

- the Commission failed to withdraw its 2008 proposals which are incompatible with the Lisbon Treaty, because of its proposal to change the definition of a "document": "the definition of 'document' is an issue of primary law, ie the interpretation of the Treaty by the Court of Justice - it is not open to the institutions to define it in a way which limits the correct interpretation and application of the Treaty. In other words the rules on access to documents must apply to all 'documents' as defined by the Treaty - they cannot exclude entirely from their scope anything which is a document as defined by the Treaty." (Professor Steve Peers)

-
the Commission 2011 proposals fails to abolish Article 4.3 of the Regulation in line with the Lisbon Treaty: the institutions' "space to think" in secret

- "for two years the Commission has "sat on its hands" and failed to respond to the "institutional impasse" between the Council and the European Parliament, it should now produce a completely new "Lisbonised" proposal" (Tony Bunyan)

The "State of Play" on amending Regulation 1049/2001 on public access to EU documents - three column chart showing the Regulation, Commission proposals and European Parliament's draft report.

ECJ: Highlights of the Access Info Europe judgment (see story below):

1. "Openness makes it possible for citizens to participate more closely in the decision-making process and for the administration to enjoy greater legitimacy and to be more effective and more accountable to the citizen in a democratic system." (para 56 of the judgment)

The Council claimed that Statewatch's publication of the document EU doc no: 16338/08 (pdf) had:

- seriously undermined the Council's decision-making procedures
- had led the Council to change it procedures so as not to record the Member State positions and
- disclosure lead to a "hostile media reception" or "sharp criticism on the part of the public"

The Court found that none of these allegations were substantiated - and observed on the third allegation that: "it is in the nature of democratic debate that a proposal for amendment of a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, can be subject to both positive and negative comments on the part of the public and media."

2. The Court said that the arguments presented by the Council:

"are not sufficiently substantiated to justify, in themselves, the refusal to disclose the identity of those responsible for the various proposals, who must, in a system based on the principle of democratic legitimacy, be publicly accountable for their actions. In that regard, it should be noted that public access to the entire content of Council documents – including, in the present case, the identity of those who made the various proposals – constitutes the principle, above all in the context of a procedure in which the institutions act in a legislative capacity .... If citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information.. Public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently. " (Point 69: emphasis added)

Tony Bunyan, Statewatch Director, comments:

"The case for the repeal of Article 4.3 of the Regulation on access to EU documents which allows the Council to routinely refuse access to documents "under discussion" on the grounds that to do so would "seriously undermine" the decision-making procedure could not be put better:

The Commission's recent proposal to amend the Regulation to reflect the changes in the Lisbon Treaty provides an excellent opportunity for the European Parliament to effect this judgment by getting rid of Article 4.3 and open up the Council's legislative role to public scrutiny and accountability"

See: The case for the repeal of Article 4.3

EUROPEAN COURT OF JUSTICE: Major victory for openness: The General Court of the ECJ has found in favour of the NGO Access Info Europe for access to a Council document containing the position of Member States concerning amendments to the EU Regulation on public access to documents: Full-text of ECJ judgment (pdf). When Access Info Europe applied for the document the names of the Member States putting forward amendments - Austria, Greece, Italy, UK and Germany - were censored. Access Info Europe appealed and the Council still refused to give access so the case went to court. The Council were backed in the case by the governments of UK and Greece. The ECJ overturned the Council decision to refuse access to the full contents of the document under Article 4.3 of the Regulation on the grounds that it would "seriously undermine the institution's decision-making process". It should be noted that amendments to the Regulation on public access to documents concern the Council of the European Union's legislative role whereby it is co-legislator with the European Parliament, see: The case for the repeal of Article 4.3

The document in question concerned discussions within the Council on amending the Regulation on public access to EU documents - the document dated 26 November 2008 was put online by Statewatch on 5 December 2008: EU doc no: 16338/08 (pdf). Much of the ECJ's judgment concerns the alleged effect of Statewatch's disclosure of the full text of the document on the Council's decision-making procedures.

For background documentation on the discussions to amend the Regulation see: Observatory: the Regulation on access to EU documents: 2008 - 2011

Analysis follows.

20 March 2011: EU: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments

- The public and civil society have a right to know what is being discussed during the EU legislative process

- Abolish the "space to think": Article 4.3 is used to deny access to documents concerning measures "under discussion" because it could "seriously undermine the decision-making process". On the contrary Article 4.3 "seriously undermines" democracy because the public and civil society have no right to know what is being discussed until after a measure is adopted (and sometimes not even then)

- the Commission used Article 4.3 to refuse access to documents in over 25% of initial applications and for the Council the figure was 39.2% (plus an undefined proportion of the 28.2% refused for multiple reasons) [2009 Annual Reports]

EU: Access to documents Regulation: Access Info Europe survey: The Secret State of EU Transparency Reforms (pdf): 16 out of 27 Member States refuse to provide information on EU transparency negotiations: In total 23 countries applied exceptions to all or part of the information requested. Protection of “ongoing negotiations”, “decision making” and “international relations” were commonly used exceptions. Also used to shield governments from accountability were grounds that the information was held in “internal documents” or “might create misunderstanding.”

20 March 2011: Statewatch Report: EU: REGULATION (1049/2001) on public access to EU documents: The State of Play: Amending the Regulation on public access to EU documents - an "institutional impasse"

Statewatch Analysis: EU: Deepening the democratic deficit: the failure to “enshrine” the public’s right of access to documents (pdf) by Tony Bunyan.

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.

Statewatch Analysis: Case Law Summary: EU access to documents Regulation (142 pages, small pdf). Prepared by Steve Peers, Professor of Law, University of Essex:

"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)."

EU: ACCESS TO DOCUMENTS REGULATION: European Court of Justice: Case T-452/09 before the General Court - ClientEarth v. Council of the European Union (pdf). This case taken by Client Earth concerns the refusal of access to the advice of the Council of the European Union's Legal Service on the European Parliament's amendments to the European Commission's proposals to change the EU Regulation on access to documents (1049/2001) because it:

"failed to explain how full disclosure would damage the protection of legal advice, in particular in the light of the Turco judgment of the Court of Justice" See Turco judgment full-text (pdf) and on which the Court's press release had said:

"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."

The released version of the Council's Legal Service is massively censored containing no information on the issues: Opinion of the Legal Service (dated 17 February 2009, pdf). However, the substantive point in the Council Legal Service's Opinion was clearly stated in Council document no: 7791/09 (pdf). The Council Legal Service argued that the EP could amend the Commission proposals but could not introduce new amendments of its own - this rejecting 27 EP amendments. The Opinion of the Legal Service of the European Parliament's (EP): Opinion on the EPs' amendments (issued in 14 April 2009) took on, and rejected, the arguments used by the Council Legal Service. Tony Bunyan, Statewatch Director, comments: "The opinion of the Council's Legal Service was an "open" secret."

EU-REGULATION on Access to documents: Aarhus-environment: EEB and Clientearth: Briefing (pdf) and Amendments (pdf)

Updated: European Parliament: 12.5.10: Draft EP report (Rapporteur: MIchael Cashman MEP). Earlier Draft report (Rapporteur: MIchael Cashman MEP): Draft report on amending the Regulation (22.3.10, pdf). Statewatch Comments on this draft (pdf)

NB: The Council Working Party has spent no time this year discussing its draft position - apart from verbal report back from the Spanish Council Presidency it has no consider the Commission proposals. See: Commission statement: Explanatory note from the Commission (pdf) which says:

"If... it appears that the legislative procedure for the adoption of the Commission's recast proposal cannot be concluded within a reasonable time frame, the Commission will consider the possibility to submit a limited proposal amending the current
Regulation (EC) No 1049/2001 only with regard to the changes introduced by Article 15(3) of the Treaty on the Functioning of the European Union."

European Parliament: Regulation on access to EU documents (17 December 2009): Access to EU documents: urgent update of rules needed (Press release, pdf) and Full-text of Resolution (pdf). The Resolution was tabled by the S&D, ALDE, Greens/EFA, ECR and GUE/NGL groups and adopted today by 341 votes to 206, with 20 abstentions. Greens/EFA Shadow Rapporteur, Heidi Hautala MEP said: "if the Council and the Commission do not budge from their positions, Parliament should reject the whole proposal".

The Commission put forward proposals to amend the Regulation on access to EU documents in April 2008. The European Parliament prepared a series of amendments, some amending the Commission's proposals and some additional ones seeking to extend the right of access. The Council and its Legal Service said that the parliament could not put forward new proposals not covered by the Commission draft and declared "inadmissible" 27 of the parliament's amendments. The European Parliament, and its Legal Service, disagreed and refused to adopt its 1st reading position. The Commission said it could not consider any changes until the parliament and Council agreed their initial positions. Tony Bunyan, Statewatch editor, commented: "We have an institutional impasse"

Report by Council of debate in the plenary session: Summary of the plenary session of the European Parliament, held in Strasbourg on 15 December 2009 (pdf)

EU: Regulation on access to EU documents: The debate in the European Parliaments's Civil Liberties Committee (LIBE) on 5 October confirmed the institutional impasse that currently exists with each of the three institutions taking different position: See: A quick guide to the "state of play" on amending the Regulation and: Report on LIBE Committee (pdf). The Commission representative also said during the debate that:

"Concerning the Lisbon Treaty, the preparatory work on legal adjustments was ongoing, with a view to the preparation of an omnibus proposal when the Treaty came into force." (emphasis added).

Tony Bunyan,Statewatch editor, comments:

"This process is turning into a farce. The Commission put forward proposals to amend the Regulation on access to documents in April 2008. Now 18 months on there has been no progress with each institutions taking different positions. Now we are told that there will be a further "omnibus proposal" will be prepared some time next year when, and if, the Lisbon Treaty is adopted.

Civil society and citizens have been waiting for years for the Regulation to truly "enshrine" the right of access promised by the Amsterdam Treaty in 1999 and we are still waiting."

See also: Proposals for greater openness, transparency and democracy in the EU (pdf) by Professor Steve Peers
and Statewatch's
Observatory: the Regulation on access to EU documents:2008-2009

Confirmation of the institutional impasse is reflected as the Swedish Council Presidency puts discussions on hold until the European Parliament makes it position clear:

"At this stage, the Council’s work on the Commission’s proposal could of course continue at the next IWP meeting. Delegations could aim for agreement on some additional issues. Another alternative would be for the Council to postpone further discussions on the Commission’s proposal until relevant information from the European Parliament is available. The Presidency suggests the second option." See: EU doc no: 12492/09 (pdf)

The next possible discussion could take place in the European Parliament's Civil Liberties (LIBE) on 5-6 October. See also: Proposals for greater openness, transparency and democracy in the EU (pdf) by Professor Steve Peers and See: A quick guide to the "state of play" on amending the Regulation

EU: Wallstrom: EU needs a commissioner for citizens (euobserver, link). Previous Commissioner Communications says on the Regulation for access to EU documents proposal, for which she was responsible, that:

"There was also the problem of the fact that designating a commissioner for transparency and democracy does not mean that it then automatically transpires. This was particularly so of transparency where she says there is a still a north-south divide on the necessity of being open about documents and how decisions are taken, with Nordic countries traditionally more open. "It has not been easy to move positions on openness and transparency" she says noting that it is "not evident" that the EU should go beyond the current basic rules. In her opinion member states have taken a step back on the issue." (emphasis added)

EU: Regulation on public access to EU documents: When the European Commission put forward proposals to amend the Regulation on access to documents in April 2008 it was assumed that the process, involving codecision by the Council of the European Union and the European Parliament, would be finalised under the Swedish Council Presidency by December 2009. However, there is little prospect of any agreement under the current Swedish Council Presidency as each of the three institutions have quite different positions on what changes should be made. Tony Bunyan, Statewatch editor, comments: "We have reached an institutional impasse." See: A quick guide to the "state of play" on amending the Regulation

Latest Council documents:

- EU doc no:
10859/1/09: (22.7.09, 38 pages, REV 1): Sets out the state of the discussions in the Council and presents a chart with the Commission proposals, the "technically admissible EP amendments" and amendments proposed by by Member States.

- EU doc no:
10859/09: (30.6.09, 39 pages) Sets out the state of the discussions in the Council and presents a chart with the Commission proposals, the "technically admissible EP amendments" and amendments proposed by by Member States.

- EU doc no:
10297/09: Related to document below: It sets out the Commission's proposal, the "technically admissible EP amendments" and observations by Member States.

- EU doc no:
10443/09: Proposal by Denmark, Estonia, Finland and Slovenia to limit a Member State's right to refuse access to a document submitted to exceptions under Article 4 and to delete: "or on specific provisions in its own legislation preventing
disclosure of the document concerned."

Council documents: 1) Good proposal from the Netherlands providing for a public interest test if a Member State seeks to refuse access to a document it has submitted to the Council: EU doc no: 11065/09 and 2) Latest Council discussions: EU doc no: 10857/09

EU-UK: Regulation on access to EU documents: House of Lords Select Committee on the European Union issues critical report on the European Commission's proposals and the position of the UK government: Access to EU Documents (pdf). Including:

"Q6 Chairman: Just to take a specific example, we have referred elsewhere to the publication on Statewatch of one of the Presidency's working documents, of the type which this Committee rarely but occasionally sees, and the commentary by Professor Steve Peers. Do you regard that as helpful or unhelpful to the progression of such matters?

Caroline Flint (Minister for Europe): I do not think it is very helpful."

Commenting Lord Mance, Chairman of the Lords EU Sub-Committee on Law and Institutions, said:

"Providing public access to documents is a key element in securing the accountability of European Institutions to European citizens. "We support attempts to make the EU more open to public scrutiny and hope the Commission use this opportunity to improve public access to documents, not limit it further. For that reason we think it is important that access to draft documents is maintained. It is not appropriate for the European Commission to establish arbitrary definitions of the point where a document is 'formally transmitted' in order to maintain space for policy development.

"We are concerned that the UK Government are seeking greater restrictions on the publication of legal advice in respect of legislation, and of negotiating positions adopted by Member States. Legislation should take place in as open an environment as possible."

Statewatch analysis: The Treaty of Lisbon and EU Openness and Transparency (pdf) by Professor Steve Peers

EU: Tony Bunyan's "View from the EU" column looks at the Current state of play of proposed changes to the Regulation on access to EU documents (Guardian Libertycentral, link, 20.5.09)

Council: Proposal made by Denmark, Estonia, Finland and Slovenia concerning Article 4, paragraph 2, point (c) of the Commission's proposal (pdf). Following the European Court of Justice judgment in the Turco case that Council Legal Opinions on policy-making meassures should in general be made publicly available these four Member States are proposing that the Regulation be amended to establish this right. Background see:

- Press release
-
Court judgment - full-text
- Turco press statement

Council Legal Service Opinion: so-called "partially accessible" document which censors 7 of the 10 pages: EU doc no: 6856/09 (dated 24.2.09, pdf).

Council: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast)U doc no: 7971/09 (EU doc no: 7971/09, dated 20.3.09, pdf). This document contains a detailed table and is based on the Opinion of the Council's Legal Service, it declares EP amendments "admissible" or !inadmissable".

Latest Council position: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) (8.5.09, pdf)

EU: Access to documents: Latest Council draft positions: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) (dated 16.4.09, pdf) and Proposals by Finland, Lithuania and Slovenia for deletion of Articles 2.5 and 2.6 and - proposal by Denmark, Estonia and the Netherlands for amendment to Article 3(a) (dated 17.4.09, pdf). It should be noted that in the former document the Council is only considering what it calls "Technically admissible European Parliament amendments", thus leaving out most of them from its discussions.

EU: ACCESS TO DOCUMENTS: EU officials warned to be careful about email content (euobserver, link). Full-text of: DG Trade: Vademecum on access to documents, January 2009 (pdf). 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 accomodate them - as some are proposing - it will herald an era of uncertainty and confusion undermining democratic decision-making."

EU: Regulation on access to EU documents: Journalists angry over the European Parliament's views on transparency - Swedish Union of Journalists

EU: Regulation on access to EU documents (1049/2001): Statewatch analysis: European Parliament report on the Regulation on public access to EU documents (pdf) by Professor Steve Peers, University of Essex. The analysis refers to the amendments in: Resolution on Commission proposals as adopted on 11 March 2009 (pdf). Overall 10 amendments are "strongly supported", 13 are "supported" (including two where further amendments are needed, 7 are "opposed", 1 is "strongly opposed" and in two instance amendments are proposed (including adding FOI requests, which was voted down by the parliament). Tony Bunyan, Statewatch editor, comments:

"To outside observers the process must be a bit of a mystery. The Commission has put forward proposals to amend the 2001 Regulation on access to EU documents. The European Parliament has agreed amendments to these proposals - but has not formally adopted them as a 1st reading Resolution. This means that the Commission can amend its proposals but will only consider doing so after the Council has adopted its position, which it does not seem close to.

The Council will agreed amendments to the Commission proposals, however, the parliament's amendments go further and put forward changes not covered by the Commission and therefore they will not be considered by the Council in reaching its position.

It is then likely that there will be a series of protracted "trialogues" (in secret) between the three institutions to reach a "compromise"."

Background: At the plenary session Mr Verheugen, Vice-President of the Commission made the following declaration on behalf of the Commission said: "The Commission takes note of the amendments voted by Parliament that it will study in detail. The Commission confirms its willingness to seek a compromise with Parliament and Council. The Commission will only consider its proposal after the two branches.. have adopted their positions."

European Parliament: Regulation on access to EU documents: Resolution on Commission proposals as adopted on 11 March 2009 (pdf): Rapporteur: Michael Cashman MEP and Consolidated version of 11 March Resolution

  EU: Regulation on access to EU documents: Statewatch analysis: Discussion of the new Access to Documents Regulation in the Council Updated version – 11 March 2009 (pdf) by Professor Steve Peers, University of Essex.

"On the whole, the reaction by Member States is still split between opponents of some of the amendments which would reduce the right of access, and supporters of those amendments, some of which would go even further to reduce the right of access. Since the latter group have more votes in Council, the prospect was either for a deadlock in Council or for a compromise where standards were lowered in some areas and merely maintained in others.

Since the European Parliament is about to adopt its negotiation position in the form of its first reading opinion, presumably the Council will now begin to react primarily to the EP’s position, rather than work further on its own position. This will change the negotiating dynamics in the Council, and so it remains to be seen whether the EP
can attract a sufficient number of Member States to those amendments which would increase the current level of access, while rejecting all amendments which

would lower it."

EU: REGULATION ON ACCESS TO DOCUMENTS: Latest Council of European Union (27 governments) position: EU doc no: 5671 Rev 1 2009, dated 4 March 2009) (pdf). The European Parliament is debating the issue on 10 March and will vote on its position (the Cashman report) on Wednesday:

Tony Bunyan, Statewatch editor, comments:

"At the moment it looks like we are heading for the same impasse we had in 2000 when the three institutions - the Council, Commission and European Parliament - each adopted different positions. It is to be hoped the parliament's position - with some constructive amendments we have proposed - will prevail and that at last we could be on the road to the new era of openness that the EU has long promised.”

Statewatch analysis of Statewatch's Analysis of the LIBE amendments (pdf) by Professor Steve Peers, University of Essex.

EU: Baltic and Slovene ministers unite for better EU wob (EU Regulation, link)

EU: Access to documents (Regulation 1049/2001): European Parliament's Civil Liberties (LIBE) report proposing amendments to the Commission's proposals (19.2.09, pdf) plus Consolidated text showing changes to Commission proposals in EP report (pdf) and Statewatch's Analysis of the LIBE amendments (pdf) by Professor Steve Peers, University of Essex.

Council discussions: Statewatch analysis: Discussion of the new Access to Documents Regulation in the Council (pdf) by Professor Steve Peers, University of Essex.

EU: Regulation on access to EU documents: Statewatch press release: Proposal to extend the EU Regulation on public access to documents to include “freedom of information” requests (Press release: full-text, pdf): Statewatch has submitted a proposal to the Civil Liberties Committee (LIBE) of the European Parliament to make explicit the right to make “Freedom of information” requests for EU documents.

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.”

EU: REGULATION ON PUBLIC ACCESS TO EU DOCUMENTS: The European Parliament's Civil Liberties Committee (LIBE) is to discuss amendment to the Commission's proposals for changes to the Regulation on Monday, 9 February. See: Statewatch analysis: Proposed amendments to Michael Cashman’s report on the Regulation on public access to EU documents (pdf) by Professor Steve Peers, University of Essex.

Statewatch "wins" complaint against the European Commission over its failure to maintain a proper public register of documents

- 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 register

Extract from a speech by Dr Hans Brunmayr, Director-General of DG "Press, Communication, Protocol", General Secretariat of the Council of the EU (2002-2007) in Brussels on 11 December 2008 organised by the Finnish Ministry of Justice:

"Regulation 1049 functions well. Personally I do not see a justification for a recast from the perspective of the Council. Too much precision and perfection bear the risk of restriction. The Regulation has allowed smooth application of access rules and served as catalyst for related
measures promoting openness and transparency. We should be careful and avoid to put the assets of the regulation in danger."
(from How has Regulation 1049 affected the work of the Council?)

EU: Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC): Contribution of the XL COSAC, Paris, 4 November 2008 (pdf) COSAC represents all the national parliaments in the EU and among its November Conclusions it expresses opposition to the European Commission's proposal to change the definition of a "document" in the EU Regulation on access to documents:

"COSAC expresses its concerns about the proposal for a regulation regarding public access to documents (COM(2008) 229), which should not limit the access to documents in comparison with the current situation. COSAC thus invites the European Parliament and the Council to guarantee a full public access to European documents, according to the transparency principle."

EU: Access to documents Regulation: Czech Senate comes out against Commission's definition of a "document": Czech Senate resolution, pdf) In response EU Commissioner Wallstrom says in a Replying letter:

"The definition of the concept of "document" in the proposal remains very wide. It is not intended to restrict the number of documents falling within the scope of the Regulation. On the one hand, it defines the point in time when a document drawn up by an institution becomes a "document" in the meaning of the Regulation. As long as a document is in progress, it is not yet a "document"; it is a "document" once it has been finalised by its author and sent to its internal or external recipients or, if it has not been sent to recipients, once it has been "otherwise registered", e.g. deposited in the relevant case file."

Tony Bunyan, Statewatch editor, comments:

"Under the Commission's proposal only the final document would be a "document". All the draft proposal documents would not be "documents", which means that all the changes, options, discussions would be secret and hidden from public view and scrutiny. The lifeblood of a democracy is the ability of parliaments, civil society and citizens to know what is being discussed and to make their views known before the final "document" is set in stone."

UK: Government does not support the Commission's proposal to change the definition of a "document" in Article 3a of the Regulation: House of Commons: European Scrutiny Committee (See Point 6.10, link). It is also interesting to note that the Government Minister interprets the Commission's proposed change to mean that it will exclude all "draft documents".

First proposals from Member States to amend the Regulation: Proposals by Member States: Austria, UK and Germany: EU doc no: 16338/08 (26 November 2008) - primarily concerning with protecting internal Legal Services advice unconnected with court cases - a negative reaction to the Turco judgment in the ECJ: Press release and Court judgment - full-text. See: Turco press statement

Paris, 4 November 2008: CONCLUSIONS OF THE XL COSAC (Conference of Community and European Affairs Committees of Parliaments of the European Union) includes:

"COSAC expresses its concerns about the proposal for a regulation regarding public access to documents (COM (2008) 229), which should not limit the access to documents in comparison with the current situation. COSAC thus invites the European Parliament and the Council to guarantee a full public access to European documents, according to the transparency principle."

See also Letter from the Grand Committee of the Finnish Parliament (pdf)

EU: ACCESS TO EU DOCUMENTS - FINLAND: Commission proposals would "constitute a backward step": Ministry of Justice, Finland, Press Release (pdf)

"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."

EU: Statewatch analysis: Proposals for greater openness, transparency and democracy in the EU (pdf) by Professor Steve Peers, University of Essex.

"The European Union’s titanic treaties keep hitting the icebergs of public opinion. Despite some undoubted improvements in ensuring openness and transparency in the EU since 1991, there is still a widespread and justified perception that:

- the EU’s activities are too secretive and convoluted,
- the EU does not listen enough to the general public or organised civil society; and
- there is too little control of the activities of the EU by the public, and in particular there is insufficient control of EU actions by directly elected parliaments....

The steps toward further openness, transparency and democracy in the European Union outlined in this analysis could largely be taken separately from any initiative relating to ratification of the Treaty 0f Lisbon."

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?

EU: ACCESS TO DOCUMENTS REGULATION: Outcome of Proceedings: Procedure to be followed for the review of Regulation (EC) No 1049/2001 (pdf) The Swedish delegation wrote to all the Permanent Representations asking that the proposal be examined by an ad hoc working party set up specifically for that purpose. It pointed out that "as constituted at present the Working Party on Information had neither the expertise nor the time necessary for the examination of the proposal". Moreover:

"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'.

EU-FOI: European Ombudsman Open Letter to Commissioner Wallstrom (European Voice) on access to EU documents:

"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)."

UK House of Commons European Scrutiny Committee: Draft Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents (link)

EU Transparency Proposal Criticised by Sweden (link)

EU: European Data Protection Supervisor: Opinion 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)

EU: FOI-ACCESS TO DOCUMENTS: 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.

Commissioner Wallströms hits back at critics: ”They can’t have read the text” (Wobbing. link). Report by by Staffan Dahllöf.

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".

European Ombudsman, P. Nikiforos Diamandouros, called on the European Parliament (EP) to defend the European Union’s commitment to transparency and the citizens’ right of access to EU documents at a public hearing in the EP's LIBE Committee (Civil Liberties, Justice and Home Affairs), the Ombudsman said: "The Commission's proposals would mean access to fewer, not more, documents. This raises fundamental issues of principle about the EU's commitment to openness and transparency."

Press release (pdf) and Full-text of speech (pdf)

EU: REGULATION ON ACCESS TO EU DOCUMENTS: EU transparency proposal criticised by Sweden (euobserver, link) and Swedish Journalist's Association considers draft EU-law 'disgraceful' (Wobbing, link)

Comments on the definition of a "document" in the Commission proposal: Back to the age of the "dinosaurs"? by Tony Bunyan, Statewatch editor, who comments:

"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.

EU Ombudsman launches EU-wide consultation on access to databases: Press release, Letter, Statement, and the Original Complaint (pdfs)

"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."

EU: FOI IN THE EU: Revised and Updated: Statewatch analysis of the proposed changes to the Regulation on access to EU documents by Tony Bunyan with additional comments from Steve Peers, May 2008.

EU: FOI IN THE EU: Should there be a Freedom of Information Act for the EU? (European Citizens Action Service,pdf) Brussels criticised on access to documents law (euobserver, link) The European Commission proposes to improve public access to documents of the EU institutions (Commission press release, pdf)

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

Exclusive: Commission proposals to amend Regulation on access to EU documents: Statewatch analysis:

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 changes

European Commission



- Adopted proposal:
Explanatory Memorandum and Annotated text

- Annex a non paper drafted by the Commission services (EU doc no: 17484/08)

European Parliament


- European Parliament: 12.5.10: Draft EP report (Rapporteur: MIchael Cashman MEP). Earlier Draft report (Rapporteur: MIchael Cashman MEP): Draft report on amending the Regulation (22.3.10, pdf). Statewatch Comments on this draft (pdf)

- European Parliament's Legal Service: Opinion on the EPs' amendments

- Resolution on Commission proposals as adopted on 11 March 2009 (pdf): Rapporteur: Michael Cashman MEP and Consolidated version of 11 March Resolution

-
European Parliament's Civil Liberties (LIBE) report proposing amendments to the Commission's proposals (19.2.09, pdf) plus Consolidated text showing changes to Commission proposals in EP report (pdf) and Statewatch analysis: Proposed amendments to Michael Cashman’s report on the Regulation on public access to EU documents (pdf) by Professor Steve Peers, University of Essex..

- 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.

- European Parliament's Civil Liberties (LIBE) report proposing amendments to the Commission's proposals (19.2.09, pdf) plus Consolidated text showing changes to Commission proposals in EP report (pdf)

- 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


- EU doc no: 12492/09 (pdf)

- EU doc no: 10859/1/09

- EU doc no:
10859/09

- EU doc no:
10297/09

- EU doc no:
10443/09

- EU doc no: 11065/09

- EU doc no: 10857/09

- EU doc no: 9716/09 (11.05.09, pdf).

- EU doc no: 9234/09 (8.5.09, pdf)

- EU doc no: 8751/09 (dated 16.4.09, pdf) and EU doc no: 8778/09 (dated 17.4.09, pdf).

- EU doc no: 7971/09 (20.3.09, pdf)

- EU doc no: 5671 Rev 1 2009 (dated 4.3.09, pdf)

- EU doc no: 6856/09 (dated 24.2.09, pdf)

- EU doc no: 5671-09 (pdf)

- Proposals by Member States: Austria, UK and Germany: EU doc no: 16338/08

- Procedure to be adopted in the Council: Procedure to be followed for the review of Regulation (EC) No 1049/2001
regarding public access to European Parliament, Council and Commission documents
(EU doc no: 13002/08) "in a spirit of compromise": reaction to a proposal by Sweden (which will hold the Presidency in the 2nd half of 2009) giving the Council Presidency a right to be involved in the development of the Council position alongside the Working Party on Information.

European Ombudsman



European Ombudsman: European Parliament (EP): Hearing 2 June 2008:

Press release (pdf) and Full-text of speech (pdf)


European Data Protection Supervisor

Opinion 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


- Statewatch analysis: The Treaty of Lisbon and EU Openness and Transparency (pdf) by Professor Steve Peers

- EU: Regulation on access to EU documents: Journalists angry over the European Parliament's views on transparency - Swedish Union of Journalists

- European Environmental Bureau (EEB): MORE TRANSPARENCY OR MORE RESTRICTED ACCESS TO DOCUMENTS - WHAT WILL WE GET? from Metamorphosis Newsletter of the European Environmental Bureau, February 2009

- 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

- Speech by Professor Steve Peers on behalf of Statewatch at the hearing in the European Parliament on 2 June 2008 (pdf)

-
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 European 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.

Background documentation

Documentation



-
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/EC Regulation 1049/2001/EC (pdf): in operation since 2001 and ongoing

- 1993 Code of access to Council and Commission documents, 20.12.93


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

 Statewatch [*]      European Federation of Journalists (EFJ)      wobbing Europe

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* Statewatch's work on Access to EU documents is supported by the Joseph Rowntree Charitable Trust, Garden Court Chambers and the Network for Social Change.


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