EU Regulation on access to documents
Comments on the definition of a "document" in the Commission's proposal
- back to the age of the "dinosaurs"?

The version of the Commission's proposed changes to Regulation 1049 on access to EU documents put online earlier was the version circulated for the Commission meeting on 30 April 2008. However, the version adopted has a number of changes, including the definition of a "document".

1. The current Art 3.a. in Regulation 1049/2001) says:

“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;”

2. In the earlier version put online said:

""document" shall mean any content whatever its medium (written on
paper or stored in electronic form or as a sound, visual or audiovisual
recording) drafted or received by an institution and transmitted to one
or more recipients or circulated within the institution or otherwise
recorded
;"

3. The adopted version says:

"drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an
institution"

This is a major change:

- gone is the term "circulated" - the category into which most Commission document fall

- and "transmitted" is changed to "FORMALLY transmitted" - which may only cover the final versions of COM and SEC documents.

4. The Explanatory Memorandum now says:

"The wide definition of the concept of "document" in Article 3(a) is maintained. However, a "document" only exists if it has been transmitted to its recipients or circulated within the institution or has been otherwise registered."

The previous EM said:

"The wide definition of the concept of "document" in Article 3(a) is maintained. However, a "document" only exists if it has been sent to recipients or circulated within the institution AND has been entered in the institutions' records."

- to say that "The wide definition of the concept of a "document" is maintained" from the current Regulation - when it is clearly being restricted is nonsense.

- the word AND has been changed to "OR" regarding "otherwise recorded"

- what does "otherwise recorded" mean? What categories of documents does this cover? This concept utterly lacks precision.

- there is also confusion in the Commission's proposal because the new EM still includes "or circulated..." but the this is deleted in the text

- clearly if a document is not "FORMALLY TRANSMITTED" or "otherwise recorded" then it is not a document - when clearly it is.

5. The further ramifications of this change are enormous:

- the commitment - as now - in the renumbered Article 2.2 which says:

"This Regulation shall apply to ALL documents etc...."

is now qualified/restricted/limited to/by the new definition of a document above !!

- this also effects Article 11 on public registers of documents which still says:

"References to documents shall be recorded in the register without delay"

but the new definition of a "document" means that only a fraction of the documents produced and received will have to be put on the register.

6. In addition under the new 12.4 each institution can decide which documents to list in its register - the Council and European Parliament can carry on as now but the Commission would be obliged to list even fewer documents than at present!

Tony Bunyan, Statewatch editor, 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.


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