2 May 2001
"OPEN LETTER from civil society on the new code of access to documents of the EU institutions" (2.5.01)
to: All Members of the European Parliament
European Citizens Action Service (ECAS)
European Environmental Bureau (EEB)
European Federation of Journalists (EFJ)
Standing Committee of Experts on International Immigration, Refugee and Criminal Law, Utrecht (the "Meijers Committee")
"We call on the European Parliament to reject the proposed "deal" offered by the Council of the European Union on the new code of access to EU documents.
We believe this proposal weakens current rights of citizens, it does not fulfil the Amsterdam Treaty commitment to further the cause of open government and ignores important requirements of the Aarhus Convention on access to environmental information (which the Community and all its Member States have signed). It has been drawn up without proper consultation with civil society groups.
Moreover it has been adopted as a result of "trilogue" negotiations with the Council (and the European Commission) which have taken place behind closed doors for over five months. At no stage has a full, open, debate in the parliament taken place on the various substantive issues proposed. We believe that the procedure followed is not only inappropriate given the nature of the topic in question, citizens access to information, but also substantially weakens the nature and purpose of the co-decision procedure as such and parliament's function in that respect.
We ask you not to adopt this approach, but to maintain current rights and insist on a new round of discussions based upon a reaffirmation of the principles of transparency set out in the Amsterdam treaty.
Our criticisms of the "deal" now presented to the Parliament are as follows:
1. It reduces citizens' rights under the 1993 Decision (prior to the "Solana Decision" of last summer) as interpreted by the ECJ and CFI. We have detailed chapter and verse of the specific ways in which the current situation has been worsened, for example, with regard to the institutions "space to think", with regard to the pre-emption of institutions classifications systems over the citizens' right of access to information on decision-making processes with regard to "third parties" (including EU member states) being able to deny citizens access to documents submitted to EU decision-making and with regard to the supremacy of this new draft Regulation over existing national freedom of information legislation in the various member states (see Footnote below).
2. It does not meet the commitment taken in the Amsterdam Treaty (Article 255,TEC) to "enshrine" the citizens' right of access to EU documents. This commitment was to ensure that at the very least the 1993 Decision, and subsequent decisions by the courts and the Ombudsman are entrenched in binding legislation, and moreover to include new rights such as the establishment of public registers of all documents with direct access on the internet (subject only to Article 4.1 of the draft Regulation).
The new code was intended to be drawn up in the spirit of the foundational article of the European Union, Article 1, namely that: "This Treaty makes a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible". This clearly indicates that the very minimum which is "possible" is the status quo. Anything less that the status quo can be considered in breach of Article 255, read in the light of Article 1.
3. The proposal further undermines democratic standards by seeking to exclude from public access, for example, documents defined as "sensitive documents" covering not just foreign and military policy but also ones concerning public security, immigration, legal measures trade and aid - and any non-classified documents which refers to them. The proposal would give EU member states, and other "third parties" like NATO, a right to "veto" access to documents submitted to EU institutions.
4. The proposal disregards the Aarhus Convention's requirements by limiting the right of access to EU citizens and residents; by phrasing exceptions in mandatory instead of discretionary terms; by failing to require reasons for refusal in all cases; and by other shortcomings.
5. Finally, we are appalled about the way in which this "deal" has been drawn up. It was prepared in secret negotiations instead of going through the proper co-decision process (where the position of each institution at each stage would be on the record and thus open to public debate). This undercover dealing goes against the fundamental values of openness and is, we believe, a disgrace to democratic standards.
In these circumstances, we conclude that the proposal before the Parliament has failed to meet the needs of citizens, it has not taken proper account of the reasoned critiques from civil society, and it will be interpreted - outside of Brussels - as a "deal" which does more to protect the interests of the institutions than the interests of the citizens.
Therefore, we ask you not to endorse this proposal and invite the Commission to present a new draft proposal to meet the Amsterdam commitment.
Many months and years have already gone by in the attempt to create meaningful, and inclusive, open government within the European Union and this flawed policy proposal must not be the last word. There is still time to continue the normal process of co-decision or to return to the drafting table. We urge the European Parliament to vote this "deal" down and make a courageous stand for the benefit of the European citizen it represents."
The views of civil society have consistently been placed on the record: 1) At a conference in the European Parliament on 26 April 1999 (where the Commission's unpublished discussion paper on the new code was the subject of much criticism); 2) At a "hearing" organised by the Committee on Citizens' Freedoms and Rights in the European Parliament on 18 September 2000; 3) At a seminar in the European Parliament organised by civil society groups on 27 February 2001. Representatives of the Council, Commission and European Parliament were present at these meetings.
Draft Regulation of the European Parliament and Council Regulation laying down the general principles and the limits of the citizen's right of access to documents of the European Parliament, the Council and the Commission, and its explanatory memorandum, drafted by Professor Deirdre Curtin and Professor Herman Meijers for the Standing Committee of Experts in international migration, refugee and criminal law, July 1999,Utrecht, Netherlands.
European Environmental Bureau (EEB) Comments on the European Commission's Proposal for a Regulation regarding public access to documents of the European Parliament, the Council and the Commission, 17 March 2000, prepared by Ralph Hallo.
In November 2000 Essays for an Open Europe, by Tony Bunyan, Deirdre Curtin and Aidan White was published, sent to all MEPs, and extensively circulated throughout the EU.
The Statewatch's "Observatory" on the new code has carried all the draft proposals, with critiques from civil society, since 1999 (www.statewatch.org).
Our detailed critique of the draft "common position", discussed at the meeting of the Committee on Citizens' Freedoms and Rights on 26 April 2001 was sent to all MEPs and placed on the internet, see: civil society response
ECAS represents 148 organisations
EEB represents 154 environmental groups
EFJ represents 200,000 members in 29 European countries
See also: "Call for an Open Europe" and Supporters of Statewatch's work on: Openness in the EU
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