European Voice: 4 September 2008

European Ombudsman Open Letter to Commissioner Wallstrom

Dear Margot,

Congratulations on making your register of correspondence directly accessible on the web! This initiative is a good example of a pro-active approach to transparency and demonstrates your personal commitment to that principle, which, as the leader of an EU institution charged with, among others, responsibility for promoting transparency, I can only applaud.

I equally welcome your decision to make use of the press to communicate your and the Commission’s views concerning the ongoing process for revising Regulation 1049/2001 on public access to documents, which is the Union’s most important piece of legislation concerning transparency.

Writing in European Voice on 6 June 2008, you say that the EU’s institutions are more open and transparent than they have ever been. I agree. And both of us want to build on what has been achieved so far by making the rules on public access to documents at EU level work even better. It is in this spirit that I wish to offer a few comments and reflections which are meant to contribute to attaining that common goal.

Your letter ‘Commission will not limit access to documents’ (12-18 June, 2008) mainly addresses some criticisms of the Commission’s proposal to revise Regulation 1049/2001. 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). I hope that you will agree with me that in the Brussels lobbying culture of informal, closed and often cosy relationships, there is a big difference. By denying that a document is a document until it has been formally transmitted, the Commission would reinforce the existing lobbying culture rather than, as should be the case, opening it up to public scrutiny.

The Commission’s proposal would exempt “documents forming part of the administrative file of an investigation” (my emphasis). That might include an investigation into a member state’s failure to comply with Community law. My experience in handling citizens’ complaints tells me that there is a great public interest in this procedure. In fact, a couple of years ago, I received two separate complaints from citizens against the Commission’s refusal to disclose documents about such investigations. In both cases, the Commission agreed to give access after I had contacted the authorities of the member states. Would that be possible under the proposed new rules?

Your article does not mention the Commission’s proposal to change the general rule on access to member states’ documents. In December last year, the European Court of Justice rejected the idea that member states have a right of veto. As currently worded, the Commission’s proposal would, in substance, overrule that decision.

Finally, the Commission wants, in substance, a basic rule that would subordinate public access to data protection. The European Court of First Instance rejected the Commission’s interpretation of the current rules on this point last year and the European Data Protection Supervisor has recently produced a detailed – and devastating – critique of this aspect of the Commission’s proposal.

Margot, you say that the Commission’s objective is increased openness, transparency and access, better outreach and understanding, and strengthened legitimacy for our institutions and our work. I know that is your personal objective and I agree with you completely that that is what the citizens have the right to demand and the EU has a duty to deliver.

That is why I hope that the European Parliament, which is now studying the Commission’s proposals, will take an active role in revising the rules on public access to documents. To deliver a good result for citizens requires not only close scrutiny of the Commission’s suggestions, but also some new and creative thinking about how to encourage a speedier and less defensive approach to dealing with access requests. I trust that you will understand my comments here as an attempt to generate a debate capable of leading us in that direction.

With best wishes,

Nikiforos Diamandouros

Strasbourg

European Voice