Reporting on openness and secrecy in the EU since 1992  Bookmark and Share updated 9.2.14


Statewatch: Observatory: the Regulation on access to EU documents: 2008 - 2013 which tracks and places on record all the news, analyses and documentation concerning proposed changes to the Regulation on access to EU documents.
Updated 31 March 2014

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

  • Frontex given until end of March 2014 to comply with the Ombudsman's Recommendations to change its Management Board Decision putting into effect the Regulation on public access to EU documents
  • Eurojust seeks to avoid any compliance until some undefined point in the future
  • Europol meets four Ombudsman Recommendations - but the launch of its public register of documents "planned for completion by the end of 2013" is overdue

    Tony Bunyan, Statewatch Director, comments:

"Access to documents is the lifeblood of accountability and democratic standards so why has it taken nine, seven and ten years respectively for these Agencies to start coming into line with EU law on public access to documents? Who is responsible for the failure to ensure compliance with EU law? Is it the European Commission which, since December 2009, has been charged under Article 17 of the Lisbon Treaty with ensuring the application of EU law?

It is high-time that these three agencies were made fully accountable to EU law and to the public by adopting and fully implementing the right of access to documents. I look forward to the Ombudsman re-visiting these complaints."

EU: Council obstructs ruling on transparency (Wobbing, link) by Staffan Dahllöf: "The Council of the EU has classified its own reaction to a landmark ruling on transparency by the EU-court in Luxembourg. The Court said citizens have a right to know. The Council refuses to disclose how this requirement will be met." See: Public access to documents (pdf): "Partial access" censors nearly all the content.

But see here the full document: Public acess to documents (LIMITE, 17177/13, 29 November 2013, pdf)

European Parliament: LIBE Committee: Openness, transparency and access to documents and information in the European Union (pdf)

"The Treaty of Lisbon updates the terms under which the principles of transparency and openness clarify the right of public access to documents in the European Union. This right is both a fundamental right of individuals and an institutional principle. The revision of Regulation (EC) No 1049/2001, which sets out the arrangements for this, is influenced, to a large extent, by the numerous interpretations from the Court of Justice of the European Union, particularly during the last five years. Observation of the practice followed by the EU institutions and the broad lines of the practices followed nationally indicate that EU law needs to undergo extensive revision, with the aim of both leveraging the case law experience acquired and bringing itself up to date."

EU: ACCESS TO DOCUMENTS: European Court of Justice rules in favour of greater transparency of the Council of the EU (Access Info, link) and Full-text of judgment (pdf):

"Madrid/Luxembourg, 17 October 2013 — In a case brought by Access Info Europe, the European Court of Justice today rejected arguments by the Council of the European Union that it should be able to keep secret the identities of Member States making proposals in the context of negotiations on future EU legislation....The Council of the EU had fought to defend its policy of releasing legislative drafting documents with the names of Member States tabling amendments blacked out."

The document in question. as the court notes. concerned discussions within the Council on amending the Regulation on public to EU documents - it was dated 26 November 2008 and the full-text (with Member States' positions) was put online at the time by Statewatch: EU doc no: 16338/08 (pdf). At issue was the Council's deletion of Member States' positions: The judgment observes in para 8: "On 26 November 2008 – that is to say, the very day on which the requested document was created – an unedited version of the requested document was made available to the public on the internet site of the organisation Statewatch, without authorisation (‘the unauthorised disclosure")."

EU: EUROPEAN BANK & COURT OF JUSTICE MADE EXEMPT FROM HAVING TO DEPOSIT THEIR HISTORICAL ARCHIVES: Council of the European Union: Council Regulation amending Regulation (EEC, Euratom) No 354/83 as regards the deposit of the historical archives of the institutions at the European University Institute in Florence (pdf) The European Parliament had to "consent" to the proposal, which it did: EP Report (pdf) and said in its Report: "The proposal in fact provides for limited amendments to the existing regulation,such as the obligation for each EU institution (except the Court of Justice and the European Central Bank) to deposit at the EUI its historical archive" (EUI, the European University Institute in Florence).

This seemingly harmless amendment to the rules for the archiving of all the documents of EU institutions (European Council, Council of the European Union, European Commission, European Parliament and agencies and bodies) excludes the Court of Justice and the European Central Bank from its scope - they will be allowed to decide on a "voluntary basis" which documents to deposit or not.

Tony Bunyan, Statewatch Director, commented: "To exclude the Court of Justice and the European Central Bank from the obligation to deposit their documents in EU archives is a backwards step. The rules only apply to documents which are at least 30 years old and if there are specific categories which require longer protection the period could be extended - though it might be asked why? To remove these institutions from the obligation to deposit their archives means that the lessons of history will never be learnt and people will never know what happened and why."

EU: ACCESS TO EU DOCUMENTS: Council of the European Union press release: Council's public register of documents hits 2 million mark (pdf): "The Council of the European Union's public register has reached 2 million documents online. As of today the register contains the references of 2.000.267 documents. Around 75% of these documents are publicly available and directly downloadable. A further 15% are partially available." ["Partially accessible" means censored] And see: Annual report for 2012 (pdf)

OVER 50% of initial requests to the Council for documents are refused to keep secret discussions on new measures

These figures sound good until the detail is examined in the Annual Report: The reasons for refusal of access on an initial application was 41.3% were for the "protection of the institution's decision-making process" (this is under Article 4.3 of Regulation 1049/2001). Understandably many applicants are interested in documents which concern new measures being discussed in the Council and its Working Parties yet it would appear that of over 50% are refused - in addition to 41.3% being refused for this reason 30.0% are refused for "Several reasons together" which can also include refusal for the "protection of the institution's decision-making process".

EU: ACCESS TO EU DOCUMENTS: Council of the European Union: FIGURES FOR CLASSIFIED/"SENSITIVE" documents given for the first time: Annual report for 2012 (pdf)

Of the documents held or produced by the Council:of the European Union in 2012

13,817 were classified as "Restricted" in 2012 - the highest annual figure ever
1,339 were classified as "Confidential" in 2012
9 were classified as "Secret"

These includes documents produced by the Council and those sent to the Council by the European Commission or the European External Action Service (EEAS). The figures for "sensitive"/classified documents produced by the Council itself (and includes in the figures above) are given as:

None were classified as "Top Secret"
33 were classed as "Secret" in 2012
332 were classified as "Confidential" in 2012 (most are not recorded in the public register)
The figure for the number of "Restricted" documents (the largest category is not given as "Restricted" documents are not referred to in the Regulation, Article 9).

Tony Bunyan, Statewatch Director comments: "The largest category, "Restricted", 13,817 documents, is of the greatest concern. "Restricted" is defined as where the disclosure of a document would be "disadvantageous" to the interests of the EU or a Member State. The term "disadvantageous" can be used to keep current and ongoing discussions secret and hence stop any critical media coverage - to enforce what has been called "the space to think" for Council and Commission officials and keep the people uninformed and unable to make their views known."

ACTA: European Court of Justice judgment: Sophie in ‘t Veld MEP v European Commission (pdf). See: Sophie in 't Veld (MEP) determined to step up efforts for more transparency in EU (link):

"Today's ruling unfortunately upholds the culture of discretion and confidentiality of diplomats that was common in the fifties", Dutch MEP Sophie In 't Veld (ALDE/D66) says in a reaction to the judgment of the European General Court in her case against the European Commission for the refusal to disclose documents on the negotiations on the anti-piracy treaty ACTA. The Court ruled, in favour of In 't Veld, that the Commission had classified too many documents confidential. However, the Court also supported the Commission by stating that a general confidentiality agreement with negotiating partners is allowed. In 't Veld: "This way diplomatic negotiations are routinely classified confidential while citizens are left in the dark."

EU: European Ombudsman: Ombudsman welcomes the Commission’s disclosure of documents on UK opt-out from Charter of Fundamental Rights (pdf): "The European Ombudsman, P. Nikiforos Diamandouros, has welcomed the European Commission’s decision to give access to documents drafted by its services on the UK opt-out from the EU Charter of Fundamental Rights. This follows a complaint from the European Citizen Action Service (ECAS), a Brussels-based NGO, which wanted to find out why UK citizens do not enjoy the same fundamental rights as other EU citizens. The Commission initially rejected the Ombudsman’s recommendation to disclose the documents. After the Ombudsman addressed a critical remark to the Commission, ECAS again requested access to the documents. The Commission then reviewed its position and released all the documents." ECAS: EU Rights Clinic and ECAS Secure Release of EU Charter Opt-Out Documents (Press release, pdf) and Background Note (pdf)

EU: Calls for better access to documents gain support in parliament (link)

ACCESS TO DOCUMENTS: European Court of Justice: The ECB was entitled to refuse access to two documents relating to the economic situation in Greece (Press release, pdf): "Any citizen of the EU, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to documents of the European Central Bank (ECB). Nonetheless, the ECB must refuse access to a document where, inter alia, its disclosure would undermine the protection of the public interest." and Full-text of Judgment (pdf)

EU: European Parliament study: The Citizens' Right to Information - Law and Policy in the EU and its Member States (711 pages, 3.6MB, pdf)

ECJ: JUDGMENT ON MERGERS AND ACCESS TO DOCUMENTS: The Court defines the scope of the right of access to documents of the EU institutions in the context of merger control proceedings (Press release, pdf): "The Commission may, subject to certain conditions, refuse access to documents relating to merger control proceedings without first carrying out a concrete, individual examination of those documents" Full-text of judgment (pdf)

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."

ECJ: ACCESS TO DOCUMENTS: Press release: General Court ruling on In ‘t Veld vs Council strengthens transparency in EU (pdf):

"Sophie in ‘t Veld, MEP (ALDE, NL), welcomes today’s ruling of the General Court of the EU on her request for access to the opinion of the Council Legal Service on the so called EU-US 'Swift agreement' on the transfer of bank data. "I am pleased the Court largely supported our claim, and puts the interest of the citizen before institutional interests. The Council will have to publish the document, with the exception only of those parts that could reveal the directives that might reveal the strategic objectives pursued by the EU in the negotiations, or the specific content of the agreement envisaged. It is a step forward for transparency in Europe, that the General Court makes it clear that negotiations on international agreements are not automatically exempt from EU transparency rules".

and European Court of Justice: Advocate General Opinion: Full-text: Sophie in ’t Veld v Council of the European Union (pdf)

EU: ECJ: Access to information - MEPs' assistants: Judgment (pdf):

"Annuls the decision of the European Parliament of 12 February 2010 in so far as it refuses to grant Kathleen Egan and Margaret Hackett the access requested to the public registers of assistants to former members of the European Parliament"

EU: Council of the European Union: Access to documents annual report: Tenth annual report of the Council on the implementation of Regulation No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (pdf)

ECJ: ACCESS TO EU DOCUMENTS REGULATION: Opinion of Advocate General Cruz VILLALÓN delivered on 1 March 2012 Case C-135/11 P IFAW Internationaler Tierschutz-Fonds gGmbH (pdf): "Right of access to documents of the institutions - Documents originating from a Member State - Objection of the Member State to disclosure of the documents - Scope of the institutions’ review of the reasons for the Member State’s objection" and "I propose that the Court should: Allow the appeal in part by upholding the second part of the second ground of appeal, alleging misinterpretation of Article 4(5) of Regulation (EC) No 1049/2001."

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-ACTA: Maladministration complaint against the European Parliament (FFII, link): "I just filed a maladministration complaint with the Ombudsman against the European Parliament for systematically lying about the existence of documents"

EU: Council of the European Union: Transparency - Historical Overview (1992 - 2010) (pdf). Useful summary of access to Council documents measures and court cases.

3 October 2011: EU: Analysis: Europe’s secret international negotiations violate EU law (pdf) by Professor Deirdre Curtin, Professor of European Law, Director of Amsterdam Centre for European Law and Governance, University of Amsterdam:

"Given the way that the EU is rapidly evolving in institutional and political terms the time has come for the issue of classified information in the EU to be confronted head on. The EU needs a general law on classification of documents applying to all the institutions and organs of the EU and adopted according to the normal legislative procedure."

Background see Decision by made the leaders of the politcal groups not by the parliament as a whole: Decision of the Bureau of the European Parliament of 6 June 2011 concerning the rules governing the treatment of confidential information by the European Parliament (pdf)

EU Ombudsman: International Right to Know Day: Ombudsman calls for more pro-active transparency in the EU (pdf): "“I am concerned about the consistently high number of transparencyrelated complaints I receive every year. Many EU institutions are still too reactive in their approach to public access and some even seem to be defensive in their thinking.”

EU: European Commission: Report from the Commission on the application in 2010 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (pdf). The Commission's annual report on public access to its document again makes very pitiful reading:

a) 26.42% of requests for documents are refused under Article 4.3 of the Regulation - to protect the "space to think", to keep secret documents under discussion;

b) the number of applications for documents has risen from 5,055 (2009) to 6,127 which is no at all surprising as the Commission's public register of documents is pathetic.

c) There are just 5,109 user sessions per month on the Commission's public register of documents - by way of comparison the Statewatch European Monitoring and Documentation Centre (SEMDOC) has 12,600 user sessions a month. This is primarily because the Commission's public register contains less than 10% of the documents it produces or receives and may of these do not give access to the document itself.

It will be recalled that Statewatch lodged a successful complaints with the European Ombudsman on the Commission's failure to maintain a complete register of documents under Article 11 of the Regulation on public access to documents: See: : Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf)

EU: ACCESS TO DOCUMENTS: European Court of Justice: The Court of Justice partially sets aside the judgment of the General Court and partially annuls the decisions of the Commission refusing access to certain of its internal documents relating to a closed merger procedure (Press release) and Full-text of judgment (pdf): Concerning Article 4.3 of the EU Regulation on public access to documents: "In order to justify its refusal, the Commission must set out the specific reasons supporting the conclusion that their disclosure would seriously undermine the decision-making process of the institution and the protection of legal advice"

EU: Member States to be bound by new security rules, Parliament adopts same restrictions

"The 27 EU-ambassadors in Brussels have agreed to make internal security rules for information binding law in the member countries. The 15 top members of the European Parliament have decided on similar rules. Information ”disadvantageous” to the EU shall not be disclosed to the public."

EU: TO DOCUMENTS: EU states object to transparency in law-making (euobserver, link): The Council of the European Union has decided to appeal against the decision of the European Court of Justice in the -Info case concerning the publication of Member States position and the "space to think" in secret under Articel 4.3 of the Regulation on to EU documents:

"An EU source told EUobserver that potentially the positions of states on all subjects and discussions at the level of working group could be opened up for public scrutiny: "The decision-making process as established, the 'space to think' must be protected. This is what is at stake.... one source close the matter told EUobserver that a full 20 member states are backing the legal action."

Tony Bunyan, Statewatch Director, comments:

"The Council are trying to bully the European Court of Justice by weight of numbers to protect their so-called "space to think" because their argument is patent nonsense. The Council is a legislature together with the European Parliament when adopting EU measures - a "legislature" in a democracy worthy of the name cannot meet in secret. Yet this is the practice the Council wants to perpetuate."

See: Full-text of ECJ judgment (pdf) and The case for the repeal of Article 4.3

European Court of Justice: ACCESS TO EU DOCUMENTS REGULATION: Judgment: Judgment - fulltext (pdf): The applicant, Mr Ciarán Toland, applied to the Parliament for access to the 2006 Annual Report of its Internal Audit Service, including the 16 audit reports and was refused access. The General Court of the ECJ ruled that it: "Annuls the decision of the European Parliament of 11 August 2008, Reference No A (2008) 10636, in so far as it refuses access to Report No 06/02 of the Internal Audit Service of the Parliament of 9 January 2008 entitled ‘Audit of the Parliamentary Assistance Allowance’;"

EU: ACCESS TO DOCUMENTS: Council of the European Union: Public access to documents - Confirmatory application No 09/c/01/11 (pdf). A perverse decision by the Council to refuse access to the Opinion of the Council Legal Services concerning the Council's use of powers under the Comitology Regulation (implementation). Four Member States - Denmark, Finland, Netherlands and Sweden voted against the refusal of access to the document as it "does not contain particularly sensitive information" and they did not agree with "the interpretation of the Turco case-law". In this case the European Court of Justice resolved that the opinions of the Legal Services should be accessible by the public where they relate to the "legislative process". The Council claims that the document, concerning the comitology process, "is not related to a specific legislative procedure or other decision-making process" - which it transparently is.

EU: NEW COMITOLOGY PROCEDURES: Regulation laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (pdf). Introduces two new procedures: the "examination procedure" or "advisory procedure".

See critique of Article 10 which severely limits the information to be publicly available: EU: Deepening the democratic deficit: the failure to “enshrine” the public’s right of access to documents (pdf) by Tony Bunyan.

EU: Corporate Observatory Europe: European Commission sued for giving privileged access to corporate lobby groups in EU-India trade relations (pdf):

"On 15 February, Corporate Europe Observatory launched a legal action1, suing the EU’s executive in the EU General Court for withholding documents related to the EU’s free trade talks with India. The Commission is accused of discriminating in favour of corporate lobby groups and of violating the EU’s transparency rules.

The case concerns 17 documents including meeting reports, emails and a letter, which the Commission’s trade department (DG Trade) sent to industry associations including BusinessEurope and the Confederation of the European Food and Drink Industry (CIAA). While these corporate lobby groups received full versions of the documents, the Commission only released censored versions to Corporate Europe Observatory, arguing that full disclosure would undermine the EU’s international relations."

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 sued for lack of transparency (European Voice, link): "Green groups take Council and Commission to court over access to documents and biofuel policy"

EU: European Commission: Report on the application of the Directive on minimum standards on procedures for granting and withdrawing refugee status (COM 465, pdf)

FREEDOM OF INFORMATION (FOI): Fringe Special: Overview of all FOI laws: 80 national FOIAs - 184 sub-national FOIAs - & 2 international FOIA (pdf) compiled by Roger Vleugels

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

EU: The European Union and State Secrets: a fully evolving institutional framework (European Area of Freedom Security & Justice, link):

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

EU: European Commission: Annual report for 2009: Regulation for public access to EU documents (pdf)

European Court of Justice: Two judgments limit rights of access to documents: Review of relationship between transparency and data protection more urgent after Court ruling on Bavarian Lager (Press release, pdf) and Refusal of access to documents concerning a procedure for reviewing State aid may be justified by the general presumption that the disclosure of those documents would undermine investigation activities (Press release, pdf)

European Data Protection Supervisor (EDPS) reaction: Review of relationship between transparency and data protection more urgent after Court ruling on Bavarian Lager (pdf)

EU: Council of the European Union: 8th Annual report for 2009 on the Regulation for public access to EU documents (pdf)

Sweden struggles with e-transparency (wobbing eu, link): "A draft law for access to electronically held information has caused a protest by the Swedish Union of Journalists. If the proposal comes through as it is, civil servants should deny access to electronic data when such access is found ”inappropriate”. E-transparency is seen as a grace, not as a public right."

EU: New case taken to the European Court of Justice on access to EU documents: Case T-529/09 before the General Court - Sophie in 't Veld v. Council of the European Union (pdf). ALDE MEP Sophie in 't Veld's case concerns access to the Council Legal Services' Opinion on the EU-USA SWIFT Agreement. In the Turco case the ECJ decide that access to could given to the Opinion of the Legal Service concerning policy matters.

EU: Regulation on public access to EU documents: European Ombudsman finds that the European Commission "has no intention of trying to complete its registers" See: Ombudsman: Follow-up to Critical and further remarks: How the EU institutions: How the EU institutions responded to the Ombudsman's Recommendations in 2008 (December 2009, see p35-36, pdf). In 2006 Statewatch lodged a complaint with the European Ombudsman against the European Commission for its failure to maintain a proper public register of documents as required under Article 11 of the Regulation on access to EU documents. The Ombudsman found there was a case of maladministration and that "“The Commission should, as soon as possible, include references to all the documents within the meaning of Article 3(a) that are in its possession in the register foreseen by Article 11 of this regulation, to the extent that this has not yet been done." The Commission reject the Ombudsman's Recommendation.

In compiling his Follow-up report the Commission was invited to comment on any progress and again refused to accept that it had any obligation to list references to all documents as it is required to do under Article 11 of the Regulation: President Barroso's letter to the Ombudsman (pdf). The Ombudsman's Follow-up Report comments:

"The Ombudsman recalls that during his inquiry, the Commission consistently argued that it was going to expand the scope of its registers and led the Ombudsman to believe that the problem was mainly a technical one (i.e., the absence of a harmonised data base for the registration of documents). The Ombudsman notes, with regret, that the Commission’s new argument suggests that it has no intention of trying to complete its registers."

Tony Bunyan, Statewatch editor, comments:

"Public access to documents is the life-blood of democracy and EU public registers listing all documents provide a rich resource for public debate, discussion and participation. The Commission continued intransigence undermines the democratic process and is utterly contrary to the much cited principles of openness and transparency in the EU."

Background: Statewatch Analysis & Postscript: Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf)

EU: European Ombudsman re-elected (European Parliament press release, pdf)

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

EU: Statewatch Analysis & Postscript: Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf) by Tony Bunyan:

"The Commission’s public register of documents is a travesty. Its rejection of the European Ombudsman’s Recommendations and failure to respond to the European Parliament’s Resolution is an instance of institutional intransigence which, in the interests of basic democratic standards, must not go unchallenged.

EU: European Commission: Annual report for 2008: Regulation on access to EU documents (pdf)

Annual Report Access to Information in Bulgaria, 2008 (link)

ACCESS TO EU DOCUMENTS REGULATION: 2008 Annual Report from the Council of the European Union (pdf)

EU: Access to Documents: Commission Secretary-General Staff Guide to public access to Commission documents (60 pages, pdf). See below for DG Trade Staff Guide

EU: ACCESS TO DOCUMENTS: 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 accommodate them - as some are proposing - it will herald an era of uncertainty and confusion undermining democratic decision-making."

EU: Council of the European Union: Annual report for 2008 on access to EU documents (pdf). The most popular area for requests in Justice and Home Affairs. Just over 73% of the documents listed on the Council register are accessible full-text. But, of course, the remaining 27% include many documents concerning measures under discussion. There has been an increase in the number of documents classified as "Restricted", where disclosure would be "disadvantageous" to the interests of the EU or its member states - in 2008 there were 505 "Restricted" documents some 40% of which concerned justice and home affairs (around 200+).

European Court of Justice: Access to documents: Two interesting judgments from the Court of First Instance: Case T 121/05 (pdf) including rejection of reliance on "privacy" exception as regards the names of scientific experts advising the Commission and Case T 166/05 (pdf) comprehensively rejects the arguments for the "decision-making" exception, include "space to think". 

EU: European Court of Justice: Judgment on aviation security (Press release, pdf) and Full-text of judgment (pdf).The ECJ rules that "the annex to Regulation 622/2003 has no binding force in so far as it seeks to impose obligations on individuals." The European Commission had failed to publish in April 2003 its implementing rules about what could and could not be taken on planes by passengers. This judgment was preceded by the Commission finally caving in on 8 August 2008: EU: Commission finally publish full decision on air travel passenger rules: Regulation laying down measures for the implementation of the common basic standards on aviation security (pdf)

EU: European Commission makes a "fishy" argument: Ombudsman urges Commission to correct error concerning fishing quotas (European Ombudsman, press release, pdf); Draft recommendation of the European Ombudsman in his inquiry into complaint 865/2008/OV against the European Commission (Full-text of Ombudsman's Decision (link) and Commission's response: Press release (pdf). The Ombudsman found that:

"it appears that the Commission's error in the table of its Non-Paper No 3 was repeated in the Council documents."

To which the Commission responded:

"Both the complaint and the Ombudsman's analysis are based on a non-paper, which is an informal discussion document. In fact, non-papers are often used as the basis for discussion prior to the adoption of official proposals by Member States in Council. However, since non-papers are not official proposals, they cannot be the source of administrative errors."

Tony Bunyan, Statewatch editor, comments:

"So a "non-paper, which is a "document" under the EU Regulation on access to documents, is not a "document" because it is not an "official proposal" even if it leads to an error in a "non-paper" being repeated in an official Council document."

The EU Regulation on public access to documents (1049/2001) states in Article 3.a. that a: "‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility", ie: a "non-paper" is a "document".

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: 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

See: Ombudsman Decision Boosts Transparency in European Union, Says EFJ : "The European Federation of Journalists, the regional group of the International Federation of Journalists (IFJ) today welcomed the decision of the European Ombudsman against the European Commission for its failure to record on its public register all documents."

HUNGARIAN CIVIL LIBERTIES UNION (HCLU): Case against the Office of the Prime Minister The Court of Appeal declared in its final judgment on 21 of January 2009, that the minutes of the government meetings are data of public interest. Unfortunately, much information won't be available for the public.

Council of Europe: Council of Europe Adopts Second-rate Treaty on Access to Information: Civil Society Groups express disappointment, call for strong monitoring body (pdf)

Spain: Report claims right of access to information is not fully recognised

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."

EUROPEAN COMMISSION: Annual report on access to documents, 2007 (pdf). The low number of visitors to the Commission's public register of its documents - only 39,013 over the full year, 3,251 per month - tells us that it is not seen as a useful source of documentation. Many, many documents are not listed and of those that are many do not give access to the text of the document. And this leads in turn to:

"The constant increase in the number of initial applications since the Regulation was adopted was again observed in 2007, when 4196 initial applications were registered by departments, 355 more than in 2006."

The Commission's failure to list all the documents its receives or produces is the subject of a Statewatch complaint to the European Ombudsman.

European Parliament: Draft Committee report on: The Annual Reports of the European Parliament, Commission and Council on public access to documents (Marco Cappato MEP, pdf)

Council of Europe: Convention on access to documents: European Parliamentarians call on Council of Europe To Redraft Substandard Convention on Access to Official Documents (Press release, pdf):

"Strasbourg, 6 October 2008: The Parliamentary Assembly of the Council of Europe (PACE) on Friday (3 October 2008) adopted unanimously a resolution expressing concern that the world’s first treaty intended to guarantee public access to information had significant flaws. In a rare step, PACE called for the Convention on Access to Official Documents to be redrafted."

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?

Freedom of Information: Updated, final version: Overview of all 86 FOIA Countries (pdf) by Roger Vleugels

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)."

FREEDOM OF INFORMATION: Atlanta Declaration and Plan of Action for the Advancement of the Right of Access to Information (pdf)

"We, over 125 members of the global access to information community from 40 countries, representing governments, civil society organizations, international bodies and financial institutions, donor agencies and foundations, private sector companies, media outlets and scholars, gathered in Atlanta, Georgia from February 27-29, 2008, under the auspices of the Carter Center and hereby adopt the following Declaration and Plan of Action to advance the passage, implementation, enforcement, and exercise of the right of access to information"

EU-ACCESS TO DOCUMENTS: Council capitulates and agree to give Mr Turco a document containing the Opinion of the Legal Service: New reply to the confirmatory application made by Mr Maurizio TURCO (1/02) following the judgment of the Court of Justice (Grand Chamber) in Joined Cases C-39/05 P and C-52/05 P (pdf)

MALTA-FOI: Citizens and NGOs convened for Freedom of Information forum (link)

EU: MAJOR VICTORY FOR ACCESS TO EU DOCUMENTS: COURT OF FIRST INSTANCE JUDGMENT ON ACCESS TO LEGAL OPINIONS - TURCO CASE:

"THE COURT AUTHORISES, IN PRINCIPLE, ACCESS TO LEGAL ADVICE GIVEN TO THE COUNCIL ON LEGISLATIVE QUESTIONS

The transparency of the legislative process and the strengthening of the democratic rights of European citizens are capable of constituting an overriding public interest which justifies the disclosure of legal advice.... The Court takes the view that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases transparency and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act.

As regards, first, the fear expressed by the Council that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole. " (Court press release)

The Court's judgment means that the Council (and the Commission) can no longer claim blanket refusals for the opinions of their Legal Services on legislative matters. The Court's judgment is also interesting because it reasserted the principle of an "overriding public interest" in allowing disclosure.

Currently the Opinions of the Council's Legal Service on legislative matters carries the following warning:

"This document contains legal advice protected under Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, and not released by the Council of the European Union to the public. The Council reserves all its rights in law as regards any unauthorised publication." [BOLD emphasis in original]

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

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: UPDATE: Commission proposals to amend Regulation on access to EU documents: Proposed changes to the Regulation on access to EU documents - COM (2008) 229 final (pdf) with Explanatory Memorandum and annotated text. The text previously put online was the version circulated for the Commission meeting on 30 April - the version that emerged and was adopted contained a number of changes, including a different definition of a "document". 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. Article 11 must not be changed and must be implemented by the Commission.

At a stroke the the new era of openness and transparency promised in the Amsterdam Treaty would be dealt a fatal blow and we will be back in the age of the "dinosaurs". "

Note on "dinosaurs": The forces for secrecy in the EU - were referred to by Mr Söderman, then the European Ombudsman, at a Conference in Brussels on 26 April 1999 as the "dinosaurs" - who under the cloak of implementing the Amsterdam Treaty wanted to turn the clock back so that the institutions could control what documents are released.

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.”

See: Statewatch analysis of the proposals

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Viewpoint by Tony Bunyan: More openness or just a drop in the ocean? The need for Freedom of Information in the EU
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The right to know or the right to try and find out? The need for an EU freedom of information law, by Ben Hayes
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"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.

Moreover, two of the Commission amendments are highly retrogressive. The new definition of a document would mean that if an official does not register it then it is not a “document” – a recipe for abuse. And the obligation of institutions to give public access to the full text of documents would be limited to legislative measures – and not cover the hundreds of thousands of other documents produced and received.

The Amsterdam Treaty was agreed 11 years ago (1997) and was meant to herald a new era of openness and transparency – we are still waiting for this to happen.”

Documentation

- Adopted version: Explanatory Memorandum and Annotated text

- Penultimate version: Commission proposals - Consolidated text
- Penultimate version:
Commission Explanatory Memorandum
- Penultimate version:
Memorandum to the Commission
- Penultimate version:
Table comparing current text to proposed changes
- Full background and documentation since 1993 is on the Statewatch Observatory:
FOI in the EU

EU: Council of the European Union: Annual report on access to documents, 2007 (pdf). Worthy of note is the growth in the number of classified documents:

"350 (original language) sensitive documents were produced in the period concerned, 26 classified as "SECRET UE" and 324 as "CONFIDENTIEL UE". Of these, 3 "SECRET UE" document and 61 "CONFIDENTIEL UE" documents are mentioned in the register, in accordance with Article 9(2) and Article 11(2) of Regulation No 1049/2001."

Of the 350 classified documents produced during the year on 64 were listed on the Council's register of documents.

In addition, applications were examined for access to 802 documents classified as "RESTREINT UE" - 35,3 % concerned European Security and Defence Policy, 28% Common Foreign and Security Policy CFSP and 25.5% Justice and Home Affairs.

The top issue for which documents where applied to the Council for access to was Justice and Home Affairs: 20,1 % in 2004 to 22,5 % in 2005 and 24,5 % in 2006, reaching 26,8 % in 2007.

Council of Europe ducks open government advocates' calls for reform; adopts weak convention on access to information that falls short of international standards (freedominfo, link)

Council of Europe: Access to Information Convention: Seven Key Problems Remain in the Draft European Convention on Access to Official Documents (pdf)

European Ombudsman: NGOs can help EU institutions do their job better (pdf)

"The European Ombudsman, P. Nikiforos Diamandouros, has underlined the importance of non-governmental organisations (NGOs) in pointing out possible instances of maladministration in the EU institutions. Over the past ten years, the Ombudsman's office has received almost 1 000 complaints from NGOs and associations. They included alleged maladministration concerning environmental projects, late payment for EU contracts, and lack of transparency in the EU institutions. Among the NGOs that complained were Statewatch, Corporate Europe Observatory, and the European Citizen Action Service (ECAS)."

EU: European Commission publishes Annual Report on access to documents for 2006 (pdf)

EU ACCESS TO DOCUMENTS: Speech by the European Ombudsman to the Civil Liberties Committee of the European Parliament (pdf)

EU-ECJ: Excellent opinion today by Advocate-General Maduro, calling for the Court to annul the Council's refusal to hand over its legal service advice relating to the reception conditions directive: A-G Opinion on Turco case (pdf)

EUROPEAN OMBUDSMAN: Statewatch wins complaint against the European Commission (full-story and documentation) The European Ombudsman has declared a case of maladministration against Commission for its failure to produce a 2005 annual report on access to documents in 2006 and found it "especially deplorable" as these reports are "a key mechanism for accountability".

The European Ombudsman's Decision says that:

"In the Ombudsman’s view, the reasons given by the Commission to explain its failure, which refer to administrative and organisational constraints, do not show that there was an objective impossibility for the Commission to comply with its legal obligation (ultra posse nemo obligatur)" and

"The Ombudsman considers that the instance of maladministration revealed by the present inquiry is especially deplorable since the publication of reports is a key mechanism of accountability to, and communication with, European citizens. The Commission should set a good example to the many new Community Agencies which have recently been established by giving high priority in future to the timely publication of reports."

This is the first of two complaints lodged by Statewatch against the Commission. Previously Statewatch won eight complaints taken to the European Ombudsman against the Council of the European Union.

EU: Statewatch lodges two complaints against the European Commission with the European Ombudsman (press release, full-text, pdf, 19 April 2007): - the Commission has failed to maintain a proper public register of documents with only a fraction of those produced listed; - the Commission failed to produce its annual report on access to documents for 2005 in the year 2006; - Statewatch says both are breaches of the Regulation and therefore cases of maladministration.

EU-OMBUDSMAN:
Press release: Information concerning MEPs' allowances should be publicly accessible (pdf) Ombudsman Recommendation (pdf) Malta Today - front page (pdf) Malta Today - article (pdf)

EUROPEAN COMMISSION-ECJ-API Case: Access to documents: Judgment - full-text (pdf) Court press release (pdf) Brussels journalists unhappy with 'routine secrecy' (euobserver, link) Statement from API (pdf):

"The CFI found that the Commission does not have to give access to pleadings before the oral hearing, but must disclose pleadings after the hearing unless it cites a specific reason as to why such a disclosure would prejudice its position before the Court."

EU-EUROPEAN PARLIAMENT: Liberal group (ALDE) re-launches transparency campaign on access to documents. Marco Cappato MEP said:

"Many documents are not on the official registers, information is often not fully available or difficult to find whilst internal procedures in some institutions are hard to follow."

"The Regulation should be revised to ensure the principle of full access to all documents. It is untenable that the Council, which is the EU co-legislating body, still denies full access to documents discussed in its working groups, such as amendments proposed by Member States representatives, positions and voting records or legal opinions which makes it impossible to follow its decision-making process."

"The Commission too should keep its register up to date and complete, while the EP should further improve the publication of its activities, such as video-streaming on the internet of its committees' debates and enhanced transparency of first-reading agreements".

He has drafted a response to the Commission's Green Paper to be discussed in the Committee on Covil Liberties (LIBE):
Working document (pdf)

EU: Court of First Instance ruling on WWF case: EU secrecy trumps openness again (WWF press release, link) The Council of the EU has succesfully defended its decision not to release a paper concerning the WTO and the environment to the World Wildlife Fund. This was the first case which concerned the application of the exception for the EC's 'economic interests, etc.' and following the Court's judgment it appears that it is sufficient for a document to simply concern the EC's external trade for the exception to apply. The CFI clearly also distinguishes between access to information and access to documents, clearly undermining the argument that there is no distinction between the two - see para 76 of the CFI judgment (full-text, link)

EU: Statewatch lodges two complaints against the European Commission with the European Ombudsman (press release, full-text, pdf - EMBARGOED until 12.00 on Thursday 19 April 2007): - the Commission has failed to maintain a proper public register of documents with only a fraction of those produced listed; - the Commission failed to produce its annual report on access to documents for 2005 in the year 2006; - Statewatch says both are breaches of the Regulation and therefore cases of maladministration. Tony Bunyan, Director of Statewatch, comments:

“The European Commission is not above the law it is the custodian of EU law, responsible for ensuring it is properly implemented. This makes it all the more reprehensible that under the Regulation on access to documents the Commission has failed to maintain a proper register of documents and failed to publish an annual report for 2005. Open, transparent and accountable decision-making is the essence of any democratic system. Secrecy is its enemy and produces distrust, cynicism and apathy among citizens and closed minds among policy makers. The European Commission must be called to account for its actions or rather its failures to act”

Statewatch Briefing Note on the Commission's Green Paper on the Regulation on access to EU documents.

EU: European Citizens Action Service, Statewatch, International Federation of Journalists, European Environmental Bureau : Should there be an EU Freedom of Information Act? (pdf) Seminar, Brussels, Thursday 19 April 2007

EU: European Court of Justice rejects Sison appeal against denial of access to EU documents (Judgment in case C-266/05 P, 1.2.07, pdf). The European Court of Justice has rejected Professor Jose Maria Sison's appeal against the EU Council's decision to refuse access to the documents relating to his inclusion on the terrorist list. For full background see Statewatch's "terror lists" observatory

Statewatch's Observatory on EU Freedom of Information - Case Law now has a list and summaries of "Pending cases" in the Court of First Instance/European Court of Justice. As at the end of September there were 25 cases pending. Pending cases list

EU-NATO: Classified information:

a) Exchange of EU classified information (EUCI) with third countries and organisations (8 September 2006)

b) EU:
Council Decision adopting the Council's security regulations (28 February 2001)

c) NATO:
Security within NATO (17 June 2002) Thanks to FOI Advocates Network

EU: European Court of Justice: The Opinion on the Advocate-General in the case of Professor Sison (pdf) who is appealing to get access to the documents leading to him being placed on the EU terrorist list. The Advocate-General rejects his case.

Freedom of Information: The Manchester Declaration (pdf) Civil Society Organisations meeting in Manchester on the occasion of the 4th International Conference of Information Commissioners agreed this Declaration. It is signed by 28 NGOs.

EU: Viewpoint by Tony Bunyan: More openness or just a drop in the ocean? The need for Freedom of Information in the EU

EU: European Ombudsman issues critical report against the Council of the European Union which tried to hide documents from applicant: Press release (pdf) Full-text of decision (link). Having first denied the existence of more documents than admitted the Council claimed that due to a "clerical error" ten other documents not been located.

The right to know or the right to try and find out? The need for an EU freedom of information law, by Ben Hayes (pdf)

Spain: "Transparency and silence" report on freedom of information throws up alarming results

European Court of Justice (ECJ): For the first time since the Regulation on access to EU documents came into force in December 2001 an applicant has won a case in the ECJ against the Commission. The Court found that the Commission failed to examine and give reasons for each of the documents refused and failed to assess whether partial access could be given. This decision will help other applicants for documents as it is the Commission's habit to simply refuse documents requested by citing a general exception to access without giving reasons of how this applies to each document: ECJ Press release (pdf)

EU: A small victory for openness: The European Commission has finally made available a full list of its expert groups (2004) (pdf) and a list of "Joint entities resulting from international agreements" (2004) (pdf). Press release from Jens-Peter Bonde MEP

UK:Freedom of information - Parliament's Consitutional Affairs Committee. Concerns about the public sector’s readiness to comply with the new freedom of information law are today (7.12.04) raised in a report by the Constitutional Affairs Select Committee.The report, which provides a snapshot of public sector preparations, warns that with less than a month to go before some 100,000 public authorities are legally obliged to give the public a general right of access to information, preparedness for the new freedom of information (FoI) regime is patchy. 1) Press release 2) Full-text of report (pdf) 3) Full-text of the UK Freedom of Information Act (link) 4) Campaign for Freedom of Information (link)

EU openness: The EU's Court of First Instance has decided that governments can veto access to documents originating from them and submitted to an EU institution (in this case the European Commission). Interestingly the applicant was supported by the Netherlands, Sweden and Denmark, while the Commission - in its refusal to give access - was supported by the UK. The Court's judgement said: "the Commission was not required to explain why the Federal Republic of Germany had made a request under Article 4(5) of the Regulation, since there is no obligation on the Member States to state the reasons for such a request under that provision". Judgement (link) (1.12.04)

Statewatch Observatory on EU Freedom of Information - Case Law: Updated (25.11.04)

(19.11.04) Council agrees levels of security co-operation with third States and international organisations (14400/04)

European Court of Justice - EU "terrorist" list: Professor Sison case on access to documents goes to court

BUDVA DECLARATION: Declaration of Regional Seminar on Freedom of Information Budva, Montenegro, 9-10 September 2004. Participants in the Budva Regional Seminar on Freedom of Information discussed international standards for the right of access to information, in particular the legitimate exemptions to the release of information. The challenges of implementation of FOI laws were also discussed, including the need for training, awareness raising, litigation: Budva Declaration (pdf)

Denmark: Breakthrough in access to agricultural EU subsidies information: Denmark (link)

UNESCO have published a: "Comparative legal survey on Freedom of information": UNESCO Survey (pdf)

European Court of Justice: Access to documents decision against the European Commission and the Council of the European Union: Press release

Building the new security regime - the EU-NATO-USA politico-military axis: EU agrees to exchange of classified documents on "crisis operations" including justice and home affairs issues: Report and documentation

EU annual reports on access to documents - still a very long way to go: Report

- less than 50% of Council documents available to citizens
- European Commission's register of documents "a disgrace"
- speech by Tony Bunyan to the European Parliament

"It is ten years since the Code on access to Council and Commission documents was introduced in 1993 and it is six years since Article 255 in the Amsterdam Treaty allegedly "enshrined" the citizens' right of access. Yet even now less than 50% of the contents of documents on the Council's public register have been released and the Commission's public register is absolutely useless. How much longer are we going to have to wait for freedom of information in the EU?"

EU cements deal with NATO on exchange of documents: Report

 European Parliament: Public Hearing: EU transparency - access to documents: does it work? Programme

Transparency in the European Union still problematic: Report

Statewatch openness case leads to landmark decision - Council agrees to keep copies of all documents and to list them in "Outcomes" (Minutes): Report

European Journalists support Irish fight to maintain open government: Report

Irish Council for Civil Liberties condemn government changes to freedom of information law: Report (link)

On 12 February 2003 the Swiss Federal Council (government) submitted a draft for a new law on freedom of information to parliament. The text of the draft is available on:

http://www.ofj.admin.ch/themen/oeffprinzip/bot-d.pdf (german)
http://www.ofj.admin.ch/themen/oeffprinzip/bot-f.pdf (french)

European Ombudsman: Council tells student that legal opinion on openness should stay secret: Report

 Mystery document appears on EU Council register: Report

 "Secrecy and Openness in the European Union" by Tony Bunyan - a new case study from freedominfo.org: Press release

European Ombudsman calls on Commission to clarify data protection rules: Report

Denied EU document reveals issues of public interest: document refused on grounds it concerned the "campaign against terrorism" contains further far-reaching proposals on surveillance, particularly of immigrants, including: "preventive information gathering": Report

European Ombudsman's Annual Report: Report  Sections on Statewatch's cases against the Council of the European Union (the 15 governments) on access to documents: Statewatch (pdf)

European Ombudsman: EU Commission secrecy around Transatlantic Business Dialogue is "Maladministration": Report (updated 18.7.02)

26 July 2000 - the day of the infamous "Solana Decision" - how did Mr Solana reply to a letter he had not received? Report

Statewatch complaints against the Council on access to documents goes before the European Parliament: Report

Very interesting site with lots of data on freedom of information in EU states:link

26 July 2000 - the day of the infamous "Solana Decision" - the Solana/Robertson exchange of letters: Report

European Ombudsman publishes code on administrative behaviour: Report

Council of the European Union disagrees on giving access to the public of positions taken by EU governments: Report

US government vetoes Statewatch access to EU-US agendas: Report
- Council of European Union says it has no choice but to back US veto
- Refusal of access follows two successful complaints to the European Ombudsman
- Decision would exclude from access any document on international policy vetoed by third parties

New EU Regulation on access to documents: Report
- the first major problem is going to be what will, and what not, be on the public registers of documents
- the second will be the exclusion of "internal documents"
- the third will be the right of "third parties" (like the US) to veto access to EU documents

European Ombudsman calls on the European Parliament to take action on the Council's failure to release documents to Statewatch: Report (5.12.01)

European Commission publishes new security rules before its rules on the public's right of access to its documents: Report

The new Regulation of public access to EU documents comes into operation on 3 December 2001
1.The new Regulation (1049/2001) on access to documents (pdf file)
2. Council's new Rules of Procedure (adopted 29 November)
3. European Parliament report amending its rules of procedure (adopted 13 November)

The UK House of Lords Select Committee on the European Union has produced a report on the "Solana Decision" of July 2000: House of Lords report

European Parliament takes Council to court for failure to consult over new (NATO) classification code - the "Solana Two Decision": Report  Full-text: EU/NATO: Security Regulations (Word 97) Security Regulations (pdf)

Statewatch wins new complaints against the Council of the European Union: European Ombudsman decides access must be given to the agendas of the EU-US Senior Level Group and the EU-US Task Force: Decision

Statewatch launches Freedom of Information in the EU site with all the background news and documents on access to documents plus a new Observatory on case law: FOI

EU openness: Heidi Hautala MEP claims victory in secrecy court case: Opinion of the Advocate General

The first seminar on the new Regulation on access to EU documents is being organised by the Academy of European Law in Trier, Germany and Statewatch: Seminar

Final version of the new EU code of access to documents: Netherlands court case withdrawn & European Parliament negotiating over access to classified documents: New Regulation

Final "compromise" text adopted by the European Parliament (3.5.01) and the Council of the European Union (14.5.01): Full-text

Postcript to the vote on the new code of access to EU documents - "Call for an Open Europe" to continue: Postcript updated 16.5.01

European Parliament votes in favour of "deal" with the Council on access to EU documents - campaign for an open and democratic Europe to continue: EP vote

Leading civil society groups send "Open letter" to all MEPs asking them to reject the "deal" on access to EU documents on 3 May: "Open letter"

"Call for an Open Europe": over two hundred sign up
Support for openness: from 72 individuals and organisations across the EU

Full-text of Commission's original proposal and the amendments to it by the European Parliament (to be discussed on 2-3 May) which represents, when combined, the proposed new Regulation on public access to EU documents: Observatory

 "Brussels stitch-up" agreed
- Council, Commission and EP Committee agree "compromise/common text"
- Civil society groups reject "deal" between Council and European Parliament

Press release: "OPEN LETTER from civil society on the new code of access to documents of the EU institutions" (23.4.01)

New code on access to EU documents: "Brussels stitch-up" on the cards Updated 23 April
- Council and EP rapporteurs agree "common text"
- Civil society groups reject "deal" between Council and European Parliament

New Council draft code undermines current rights of access: New draft

European Federation of Journalists call for an end to secret negotiations and a "fresh start" on the new code of access to EU documents: "Fresh start"

Validity of secret "trilogue" meetings over new code of access to EU documents thrown into question: Report

Council Decisions: 1) gives EU member states a "veto" over access to documents 2) new Solana classification code will "contaminate" access: Decisions

 Hautala v. Council: Partial access to documents: News online

Statewatch wins two new complaints: European Ombudsman decision breaches "space to think": European Ombudsman

"UK parliament report slams the "Solana Decision" on access to EU documents: Report

"Trilogue" talks start again - call by civil society groups for an end to secret negotiations: Trilogue II

Article by Tony Bunyan, Statewatch editor, in European Voice: No freedom of information in the EU

"Trilogue" discussions collapse with no agreement - 1st May deadline will not be met: Trilogue

Seminar on access to EU documents, 27 February, Brussels: Seminar

ECAS press release on new code of access: EU transparency in muddied waters

New draft shows how far the EU is from real freedom of information: New draft

EU institutions to hold "trilogue" meetings to try and sort a "compromise" on their different versions of the new code of access: trilogue (news, 22.1.01)

The European Federation of Journalists and Statewatch have launched a "Call for an Open Europe" on access to EU documents which includes "Our code", a code of access to documents for civil society: "Call"

New draft (dated 18.12.00) of Council's common position leaves the incoming Swedish Presidency with a difficult job: New draft

Chair of EP Committee attacks Council's draft common position on access: Watson letter

"Solana Decision" extended to cover justice and home affairs, trade and aid: "Solana Two Decision"

Survey shows which EU governments back openness, which do not: Openness survey (29.11.00)

Statewatch News online: "Solana Decision" back on the agenda (27.11.00)

European Parliament "has ignored civil society" plus full-text of the report adopted: Report

European Federation of Journalists publishes "Essays for an Open Europe", which argue that civil society needs to join in the debate on access to EU documents: Essays

UK House of Commons Select Committee on European Scrutiny report on access to EU documents: Report (21.11.00)

European Parliament adopt report on access to EU documents - but what happened to citizens' rights?: EP vote, where now?

 European Parliament to vote on report on access to documents on Thursday. Full list of amendments, voting list and analysis: EP vote

European Parliament report on access to EU documents in need of radical amendment - parliament to adopt first reading position on Thursday in Strasbourg: Report, critique and documents

Reports on EU access to documents carried on Statewatch News online - please check this page for the latest news:

The European Parliament has formally decided to take the Council of the European Union to court over the "Solana Decision": Green/EFA press release Council offer deal to head off court action by EP: Compromise
deal
A detailed analysis by Statewatch shows that the European Commission and the Council want less access to documents than at present: Analysis
Germany and France lead fight for more secrecy by EU governments and UK sits on the fence - Council's position on access to documents even worse than the Commission's: Council

Sweden
Swedish government decided (28.9.00) to back Netherlands court case
Finland : the Finnish government to back the Netherlands in their court case
Netherlands to take EU to court the Netherlands government decides (22.9.00) to take the Council of the European Union to court over the "Solana Decision"
EP Court action The European Parliament votes to take to take the Council to court over the "Solana/NATO Decision
Press release: Green/EFA group in EP
Opinion "Opinion" article in the Irish Times (23.9.00)
NATO letter Snub to European Parliament reveals more NATO demands
MEPs demand action EP decision with full-text documents

Solana's coup imposes EU security state: EU governments adopt the "NATO/Solana" amendments to the Decision on public access to documents (14.8.00) and it came into effect on 23 August:
Text of the Decision 
Analysis The 1993 Decision as now amended by the Decision of 14 August 2000
Classified documents  Council Decision of 19 December 1999 overturned

International Federation of Journalists: "Journalists condemn "Summertime Coup":
IFJ 
The UK parliament issues critical report on Commission's proposal: Report

Background document to "Solana Decision" released: Council Security Plan

  EP's position on access: 1st reading report  Statewatch proposed amendments to it

Analysis of the Commission and Council's position on new code of access to EU documents which shows that both institutions want more secrecy and less access than at present: Analysis

Text of speech by Tony Bunyan, Statewatch editor, to the "hearing" in the European Parliament on 18 September 2000 on the new measure on public access to EU documents:  Talk

Netherlands to take Council to court over "Solana Decision" Netherlands MEPs demand action on "Solana/NATO" Decision, calls for the European Parliament to take the Council to court: EP to take legal action?

Amendments to the 1993 Decision on public access to documents agreed by "written procedure" on 14 August in advance of the Amsterdam Treaty measure: see Statewatch News online: New access decision For background to the Decision see: Solana coup

The Commission has circulated a revised version of its proposal for public access to documents which contains a significant change from the original: Revised Commission proposal  22.2.00

NEW STATEWATCH COMPLAINTS TO THE EUROPEAN OMBUDSMAN OVER ACCESS TO EU DOCUMENTS

 Statewatch has taken two new complaints to against the EU Council of Ministers over access to documents to the European Ombudsman: Press Release  10.7.00


NEWS, DEVELOPMENTS & DEBATES

  Statewatch's suggested amendments to the Commission's proposal on the public's right of access to EU documents: Amendments

 Online debate organised by Die Zeit between Tony Bunyan, Statewatch editor, and Mary Preston, of the European Commission, on the proposed regulation on public access to EU documents: The debate

 The European Environmental Bureau (EEB), which represents 135 environmental citizens organisations, has prepared a critique of the Commission's proposal, see: EEB

 The "debate" between Mr Soderman and Mr Prodi: Mr Soderman/Mr Prodi

THE NEW PROPOSED REGULATION ON PUBLIC ACCESS TO DOCUMENTS

 Regulation of public access to documents adopted by the Commission on 26 January: Commission proposal for a regulation on public access to documents

 Second draft of Commission's Regulation leaked to Statewatch: 29.11.99

  First draft of Commission's Regulation: 22.10.99.

THE EUROPEAN COMMISSION's UNPUBLISHED CONSULTATION PAPERS ON THE PROPOSED REGULATION

 The two drafts of the Commission's unpublished "communication", dated 22.1.99 and 23.4.99

THE CURRENT CODES OF ACCESS TO DOCUMENT FROM THE COUNCIL and COMMISSION which were adopted in December 1993

  The current Codes governing access to documents were adopted in December 1993. Their operation has been greatly improved by challenges in the Court of Justice and complaints to the European Ombudsman by NGOs, MEPs, journalists and academics:

 The Code used by the Commission: Commission code

 The Code used by the Council: Council code

 Statement by the European Federation of Journalists on the proposed regulation: EFJ

 Statewatch analysis of the proposed measure: Statewatch analysis

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