Detailed critique of the amendments tabled by Michael Cashman & Hanji Maij-Weggen (11.4.01) and an analysis of how these would undermine existing rights/standards

From civil society:

STATEWATCH
EUROPEAN FEDERATION OF JOURNALISTS (EFJ)
EUROPEAN CITIZENS ACTION SERVICE (ECAS)
EUROPEAN ENVIRONMENTAL BUREAU (EEB)
Deirdre Curtin
, Professor of the Law of International Organizations, University of Utrecht and member of the Standing Committee of Experts on International Immigration, Asylum and Criminal Law, Utrecht
Ulf Öberg, doctoral candidate on Public Access to Documents in European Law, Stockholm University, Sweden
Steve Peers, Reader in law, Human Rights Centre, University of Essex.

A. CLAUSE by CLAUSE CHANGES: AMENDMENTS and DELETIONS WHICH WOULD SUBSTANTIALLY IMPROVE THE REPORT and RESPECT THE STATUS QUO

It may be that the Council or the Commission or even (and sadly for the citizens), the European Parliament, may find many, if not all, the suggested amendments or deletions below unacceptable. But then the question has to be answered as to the interests that are being enshrined in the new legislation: the inter-institutional interests of the three parties participating in the EU decision-making procedure or the interests of the EU citizens in public access to information on the political and rule-making process?

a. Article 3

Article 3: covers the "Definition" of a document. This has changed and is an improvement on the earlier versions as it retains the definition in the existing code (3.a). But this is then undermined by 3.b. which defines "third parties" and includes EU member states (governments) as "third parties" (member states form the Council of the European Union and cannot be "third parties"). This amounts to constitutional nonsense and moreover is not the status quo and should be scrapped forthwith.

DELETE "Member states"

b. Article 4

Article 4.1. contains no public interest test.

AMEND Article 4.1. by inserting at the end of 4.1: "unless there is an overriding public interest in the disclosure"

Article 4.3. access to documents which contain "individual opinions for internal use as part of deliberations and preliminary consultations" may be refused "even after the decision has been taken if disclosure would seriously undermine its ability to carry out its duties unless there is an overriding public interest in disclosure". This leaves wide discretion in the hands of the institutions as the standard, "ability to carry out its duties", is far too, wide.

DELETE second sentence of 4.3.

Article 4.4: This gives EU member states what amounts to a "veto" over access to documents which they have submitted to the decision-making process and the ongoing practice of the EU. It gives a absolute right of "veto" with no test (eg: the receiving institution, on consideration, judges it falls under one of the exceptions in 4.1. or 4.2).

This proposal is an invitation to member states, who are increasingly put forward initiatives and reports, to "veto" access to measures which might be controversial. Moreover, in our view it elevates a mere declaration annexed to the Amsterdam Treaty to the status of binding law and further extends it in an unacceptable manner.

Contrary to the reported claim of Mr Lund this "veto" on access to documents emanating from member states is not limited to "sensitive documents"

DELETE

Article 4.5

Says that an institution should "consult" other "third parties" (eg: NATO or USA) before assessing whether a document falls under the exceptions in 4.1 & 4.2. But then it says "unless it is clear that the document shall or shall not be handed out" - what standard would apply in the case that it is "clear" that a document should not be handed out? This phrase is clearly incomprehensible and inoperable from the vantage view of the citizen and should in any event be deleted.

Only an EU institution should have the power to deny access by applying the standards in Articles 4.1. & 4.2. At the very most it should be stated that an institution "may" consult other third parties.

THE PREFERENCE IS TO DELETE IN ITS ENTIRETY

c. Article 4a(new)

This affects national laws on freedom of information in an unacceptable and retrogressive fashion. A member state will be expected to "consult" the institution from which a document originated and not give access if it would "jeopardise the attainment of the objectives of this Regulation". It is also of doubtful legality because it imposes obligations on Member States, not EC institutions.

DELETE

d. Article 5

Article 5.3 gives wide discretion to the institutions and has been abused in the past (see Statewatch complaints to the Ombudsman). Article 5a.2 gives the institutions the discretion to extend the time-limit for responding to such requests rendering this clause unnecessary.

The phrase "may confer with the applicant" means in practice "never". A "fair solution" means the institution deciding what is "fair".

DELETE Article 5.3

e. Article 5a(new)

Article 5a.4 encourages bad administrative practices

DELETE Article 5a.4

f. Article 6

Article 6.3 changes the Commission draft that failure to reply constitutes a "positive response" to "negative response". Bad administrative practices should not be encouraged: It is after all the recalcitrant and tardy institution which should be penalised for its failure to fulfil its legal obligations and not the individual applicant.

AMEND replace "negative" with "positive"

The measure cannot "entitle" citizens to the right of appeal to the court or the European Ombudsman, we already have this right under the TEC.

DELETE everything after "..reply"

g. Article 6a(new)

We fail to understand why Article 4 is not sufficient to protect the documents in question.

There is no test of public interest attached to this provision. It is outwith and in addition to the exceptions in Article 4. Moreover it is not part of the status quo developed around the inter-institutional 1993 code of practice and reflects a one-sided and highly controversial amendment to the Council's Decision the legality of which is currently under challenge before the ECJ.

Whereas the original "Solana Decision" concerned defence and foreign policy this provision extends to all areas of EU activity including justice and home affairs, trade and aid. In other words it constitutes further dilution of the status quo.

6a.1 Defines "sensitive documents" as those documents classified as "Top Secret", "Secret" and "Confidential" yet from the Council's own documents it is clear that:

i) the application of the classifications to "sensitive documents will extend to "Restricted" ones as well;
ii) that any non-classified document, or group of documents on the same subject, which refer to a classified document (including "Restricted") will automatically be treated as if they are classified and be subject to refusal of access. This will lead to extensive "contamination", with non-classified documents which are currently accessible being denied.

6a.1. It is amazing fact that the EP delegation has been willing to agree to a definition much much wider than the Solana decision, even though it is challenging that decision! They really have to decide whether they are ultimately acting in the public interest or the institutional interest in making that challenge and arguing on this issue. Moreover, Article 6a(1) allows each institution to define the scope of the fundamental concept of 'sensitive documents', a clear breach of Article 255 (see comments on Article 6a(3) below).

Also extends this special protection to the "essential interests" of "one or more of its Member States in the areas covered by Article 4.1(a)", yet this Article does not cover Member States.

6a.2. Will allow "vetted" personnel (eg: police and military) sitting on Council working parties to decide not only on applications for access but also "which references should be made in the public register". Such officials are not noted for their openness. The later provisions on the register make no reference to the prospect of refusing to list certain documents in the register. This provision is incoherent. (The reference to 11.2 is clearly a mistake as this refers to the Council's numbering)

6a.3:
The idea of the classification rules adopted by each institution taking precedence over the grounds for refusal in Article 4 of the Regulation is monstrous. For one thing, Article 255 makes clear that the institutions' rules of procedure can merely implement the general rules to be adopted according to that Article; this clause would allow the institutions' internal rules (not even their rules of procedure) to determine access. As such it violates Article 255 which clearly requires that the conditions and limits on access must be contained in the Regulation itself.

Additionally, along with Article 6a(1), this provision violates central principles of institutional balance in the EC treaty, because it allows the individual institutions to adopt and amend internal measures which affect the application of a measure to be adopted by co-decision. The EP of course lacks even a consultation or information right, never mind a co-decision right, over the internal measures of the institutions. As such it is astonishing that a delegation representing the EP would ever agree to such a provision, which is not only clearly highly legally suspect but also highly detrimental to the legislative prerogative of the EP-never mind the rights of EU citizens.

6a.4. Says the originator has a "veto" over not just access but also any reference on the public register.

6a.6. Binds member states not just to "respect" the exceptions in Article 4 but also the provisions in this Article. Further it makes no sense for this Regulation to require Member States to apply certain standards to these documents even when they come from other Member States and third countries and organisations. By any possible legal interpretation, this is wholly outside the powers conferred by Article 255.

6a.8. Refers to an interinstitutional arrangement which has no place in a measure concerning citizens rights. There are major doubts about the legality of including an inter-institutional clause in this measure given that Article 255 deals purely with citizens applying to EU institutions.

In principle all refusals of access to documents should only be based on the exceptions in Article 4. Moreover, the Council Security regulations rest on an uncertain legal basis (207.3) in so far as it intends to bind Member states and that it can't be excluded that the Council's decision will be challenged before the CFI/EJC.

DELETE this Article in its entirety

h. Article 7 (Amendment 98) Access following an application

Article 7.1 states that access should in principle be "free of charge" (except where more than 20 A4 pages are requested).

Article 7.1a suggests that an institution can discharge its obligation to supply copies of documents where "it is easily accessible to the applicant" (a problematic formulation, who decides if a documents is "easily accessible"?) by "informing the applicant how to obtain the requested document".

The problem here is that an institution should not be allowed to discharge its duty to supply a document by informing an applicant how to obtain it if this involves: i) unreasonable travel (to where the document is located) and ii) where the cost of obtaining the document is unreasonable.

At the moment the Commission often tells applicants that access to a document can be obtained by purchasing a copy of the Official Journal - the cost of such a purchase on one occasion for us was over £50. Moreover, the Commission's practice varies according to which department is replying, some being more open than other happily send free copies of requested documents.

We think this can be resolved reasonably by extending the principles of "free of charge" in 7.1. to 7.1.a by allowing an institution to discharge its duty to supply a document by informing an applicant where they can obtain it "free of charge".

AMENDMENT: add "free of charge" (and the end of the paragraph)

i. Articles 9 and 9a(new)(Amendments 100 & 101)

The report of 5.4.01 introduced major changes by incorporating the "compromise" text.

Article 9.1 is unclear as to its effect and the word "all" should be inserted in the last sentence to read as follows:

AMENDMENT: "Reference to all documents shall be introduced onto the register without delay"

Article 9.2, 2nd para is also unclear and refers to the whole of Article 4 not just Article 4.1. Moreover it is unnecessary as the reference to a document does not as such guarantee access to the document itself. Public knowledge of the existence of a document and its subject matter is essential and an important safeguard against corruption and the abuse of power.

DELETE: 2nd sub-paragraph

j. Article 9a(new) (Amendment 101)

This entirely new proposal allows quite unacceptable discretion to the institutions and could render the registers partial and misleading - terms as such "as far as possible" have to go.

Article 9a.1

DELETE the words: "as far as possible" and INSERT "all" before documents

The distinction between "legislative documents" and "other documents" (to be made available "where possible") drives a "coach and horses" through the principle of giving direct access as it is currently interpreted and applied. Indeed Article 9 which does not currently include a commitment to register all documents when combined with "where possible" (for direct access) allows for extraordinary, and unacceptable, discretion.

The distinction between "legislative documents" and "other documents" is very dangerous. The majority of institutional documents from the Council and the Commission are not concerned with legislation but with implementation (practice following from agreed measures).

DELETE: Articles 9a.2 and 9a.3 and AMEND Article 9a.1 by adding to the end "subject to Article 4"

k. Article 9a.4

Unacceptable discretion which could be abused:

DELETE: "as far as possible"

l. Article 9b.2

"As far as possible" allows far too much discretion.

DELETE "As far as possible"

m. Article 9d(new)

Article 9d.2: Provisions for arrangements between the institutions have no place in a measure concerning citizens rights of access to EU documents

DELETE Article 9d.2

n. Article 9e(new)(Amendment 105) Reproduction of documents

The rights of individual authors such a playwrights, songwriters etc should obviously be protected by copyright laws.

The problem is extending this principle to documents produced by public institutions or officials (public servants) who work for them, like the Council, Commission and European Parliament or for that matter Member States.

The effect of the current draft is quite unclear. What are the existing rules and what is their effect? What new rules are in the pipeline? No one seems to be able to answer this question.

In the UK, providing the source is acknowledged (eg: Crown copyright) public documents produced by public servants for public institutions can be reproduced. This encourages informed debate in civil society and strengthens democracy.

To clarify this point we would suggest adding the following to this provision:

AMENDMENT: "not authored by public institutions"

o. Joint statement:

It is quite unacceptable that bodies and agencies created by EU institutions are not included in the body of the measure.

DELETE and revert to previous text

B. Access to Documents: Do Proposed EU Rules Lower Current Standards?

This report analyses in turn whether and to what extent the proposed Regulation on access to documents held by the Community institutions, in the version sent by the EP rapporteur with a request for commentary, would reduce the extent of the right of access to documents guaranteed by the current rules and practice of the Council and Commission, as clarified by judgments of the Court of Justice and Court of First Instance and rulings by the EU Ombudsman.

The assessment takes as a starting point for 'current standards' the 1993 and 1994 Decisions of the Council and Commission, the former as supplemented 1998 and 1999 by further Council Decisions. It does not take into account the so-called 'Solana Decision' of summer 2000, which amended the Council rules to make them more restrictive and which is under challenge in two separate cases before the Court of Justice. Nor does it take into account the March 2001 amendment to the rules adopted by the Council.

The following analysis makes recommendations as to what changes to the version being considered need to be made to conform to current standards. This does not prejudge the issue of what further desirable changes to these texts should be made to improve upon the present rules (see above).

Substantive Articles

a) Articles 2(5), 4(7), 6a: sensitive documents

The current rules do not contain any concept of 'sensitive documents' which should receive separate procedural treatment. Therefore any introduction of such a principle into the Regulation inevitably represents a retrogression from existing rules. This is particularly true as regards no fewer than five provisions of Article 6a.

First, Article 6a(1) allows each institution's internal security rules, not the rules on access to documents, to determine how the access rules apply. This gives priority to security rules over access rules, a clear conflict with current standards. Furthermore, the definition in Article 6a(1) is substantially wider than the definition in the Solana Decision, which the EP has challenged, so in that respect would represent a drop in standards even as compared to the Solana Decision.

Secondly, Article 6a(3) allows a request for a document to be rejected until that document has been declassified. This is a manifest regression from the current rules, which refer only to the content of a document as grounds for refusing its release, not its status under the internal rules of one of the institutions.

Thirdly, Article 6a(2) allows certain officials to determine whether references to 'sensitive' documents will appear on the register of documents; this contradicts the Council decision of 1999 on this issue.

Fourthly, Article 6a(4) allows the originator of a 'sensitive document' to veto its release or registration. This represents a substantial retrogression from the current rules, which do not give the originator of a document carte blanche to veto its release unless it can justify its position under the specific exceptions provided for in the rules; moreover, as pointed out above, the Council Decision of 1999 requires all documents to appear on the register. The current rules do allow the originator of information to veto its release, but that is a narrower principle than that of allowing the originator to veto documents.

Finally, Article 6a(6) places obligations on the Member States; as explained at point (e) below, the current rules place no obligations upon Member States at all.

To conform to current standards: Articles 2(5) and 6a should be deleted and the references to 'sensitive documents' should be deleted from Article 4(7).

b) Article 3(b): definition of 'third party' and Member States

The issue of whether Member States constitute third parties under the current rules, given their involvement with EU decision-making and their obligations to implement EU law, is still open. It has been disputed before the Court of First Instance in pending cases T-111/00 BAT v. Commission and T-36/00 Elder v. Commission, recently heard by that Court. So it is arguable that defining Member States as third parties would reduce current standards. This is particularly true as regards the Member State holding the Council Presidency, since Member States holding the Presidency have explicit duties as a formal part of that institution. It follows that defining Member States as 'third parties' is highly likely to represent a regression from current standards.

To conform to current standards: Article 3(b) must be amended as follows: the words, '…excluding the Member States but including the Community or non-Community institutions or bodies…' should replace the words 'including the Member States'. Article 4(4) must also be deleted as a consequence.

c) Article 4(2), second indent: 'legal advice' exception

This text appears to transpose the judgment in T-610/97 R Carlsen v. Council [1998] ECR II-485. However, this ruling was an 'interim measures' ruling on the issue of whether documents should be released pending a full hearing of the case. As such it is not a full precedent on the issue of whether documents containing legal advice could be excluded on the basis of the current rules. Since the current rules do not contain any explicit exception for 'legal advice', the Carlsen ruling was based on the assumption that the list of grounds for which documents could be refused were non-exhaustive. This appears to contradict the clear wording of the current rules and the constant case law of the Court of First Instance since Case T-105/95 WWF v. Commission [1997] ECR II-313, now confirmed by the Court of Justice (Joined Cases C-174/98 P and C-189/98 P [2000] ECR I-1) that the exceptions to the access to document rules must be interpreted and applied strictly. For these reasons, it is strongly arguable that the current rules do not recognise a 'legal advice' exception.

To conform to current standards: the words, 'and legal advice' should be deleted from the second indent of Article 4(2).

d) Article 4(3): Discretionary exception

The wording of the proposed text is tilted in favour of the institutions; this conflicts with case law applying the current rules which requires a detailed examination of the balance between the public interest in release and the institution's interest in confidentiality (see particularly Case T-194/94 Carvel v. Council).

To conform to current standards: the reference to overriding public interest should be replaced in both indents by the following words: 'after considering in regard to each individual document the balance of interest between the institution's interest and the public interest in release of the document'.

e) Article 4a: Member States

The current rules do not expressly affect Member States' legal and constitutional rules as regards access to documents. Any change in this situation, to impose requirements on Member States that would limit their national rules on access to documents, would therefore undoubtedly constitute a regression from current standards.

To conform to current standards: Article 4a has to be deleted in its entirety. The same point could be made in regards to Article 6a(6), but the whole of Article 6a should be deleted in any event (see point (a) above).

f) Articles 5(3) and 5a(3): 'very large number of documents'

The current rules have no exception for 'a very large number of documents'.

To conform to current standards: the phrase should be deleted in both Articles 5(3) and 5a(3).

g) Article 9a(2): direct access to documents on the register

The current Council practice is to make all documents available once there has been a successful application for their release. This should be confirmed in this paragraph, because otherwise this issue would be left to the discretion of the institutions according to Article 9a(3).

To conform to current standards: add the words 'as shall other documents once they have been released pursuant to the provisions of this Regulation' at the end of this paragraph.

h) Article 9e: reproduction

The wording is wider than found in the current rules.

To conform to current standards: replace wording with the current wording of the Commission and Council Decisions.

24 April 2001

Text of Cashman/Maij-Weggen report to which these changes refer: Text



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