Statewatch "wins" complaint against the European Commission over its failure to maintain a proper public register of documents

- European Ombudsman: 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



Today (29 January 2009) the European Ombudsman: Press release:The European Ombudsman criticises Commission for inadequate register of documents (pdf):

"The European Ombudsman, P. Nikiforos Diamandouros, has urged the European Commission to set up a comprehensive register of the documents it produces or receives. This follows a complaint from the British NGO, Statewatch, about the Commission's failure to register the vast majority of its documents. According to the Commission, the establishment of a comprehensive register is impossible at this point in time, mainly because of the use of incompatible registers in its different departments. The Ombudsman was unconvinced. He considered the Commission's failure to comply with the legal obligation to establish such a register to constitute maladministration."

On 14 January 2009 the European Parliament adopted a strong Resolution: Resolution on public access to European Parliament, Council and Commission documents (implementation of Regulation (EC) No 1049/2001): Rapporteur: Marco Cappato (pdf):

"Urges the Commission to follow the recommendation of the European Ombudsman (Complaint 3208/2006/GG) on the Commission register as regards its obligation to "include references to all documents within the meaning of Article 3(a) that are in its possession in the register foreseen by Article 11 of [Regulation (EC) No 1049/2001], to the extent that this has not yet been done"


More than two years ago Statewatch lodged a complaint with the European Ombudsman against the European Commission for its failure to maintain a proper register of documents, produced and received, under Article 11 of the Regulation on public access to EU documents (1049/2001).

Statewatch said that under the Regulation all "documents" as defined in Article 3.a. had to be listed on the Commission's public register of documents (Article 11) "without delay" and that they had failed to do since June 2002 (when the register became mandatory under Article 11). And further that its failure to comply meant that only a "fraction" of the documents covered were listed on the register.

Throughout the correspondence (see list below) the Commission it did not accept the definition of a "document" as set out in Article 3.a of the Regulation:

"‘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;"

as it was too "wide" and therefore was not intending to list all documents in its public register required under Article 11:

"To make citizens' rights under this Regulation effective, each institution shall provide public access to a register of documents. Access to the register should be provided in electronic form. References to documents shall be recorded in the register without delay."

In addition, the Commission said it did not accept that Article 11 meant it had to list all documents in its register. Its stated intention is to "gradually" expand the scope of the contents in its own time.

The European Ombudsman said the Commission was bound by the definition of a "document" in Article 3.a and that Article 11 meant all all documents held by the Commission had to be listed in the register.

On 7 April 2008 the European Ombudsman issued the following Recommendation to the Commission:

"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 and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 15 July 2008. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation."

The Commission did not respond until mid-August 2008 when it simply reiterated the same arguments and rejected the European Ombudsman's Recommendation. The European Ombudsman sought to negotiate with the Commission but, as he states in the press release:

"the Commission has chosen instead to propose a narrower definition of what a document is. In my view, this will lead to fewer rather than more EU documents being accessible to the public."

On 18 December 2008 the European Ombudsman found that there had been "maladministration" by the Commission and issued "critical" remarks.

How Statewatch's complaint led to the Commission to try and change the law 


In a perverse turns of events it appears that Statewatch's successful complaint instead of leading to lawful compliance by the Commission has lead instead to it trying to change the law, to propose amending the Regulation by changing the definition of a "document". Let us go back in history to see how this occurred.

In December 1993 the Council of the European Union and the Commission both adopted a Code on access to documents, following the implementation of the Maastricht Treaty. The Code contained the following definition of a "document":

""Document" means any written text, whatever its medium.."

After the Amsterdam Treaty the definition of a "document" in Article 3a of 2001 Regulation was the same.

In April 2007 when the Commission put out a consultation paper on the Regulation it might have been thought that if it wanted to change the definition of a "document" the paper would have included this question - it did not. When the Commission reported back on the results of the consultation in January 2008 it noted that:

"The concept of a document: As regards the concept of a "document" the general feeling was that the current wide definition should be maintained."

So in January 2008 some 15 years after the definition of a "document" had been in place there was no demand to change it by the Commission or anyone else.

Yet just three months later, on 30 April 2008, the Commission proposed that it should be changed and narrowed down:

«document» shall mean . means . 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 drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution;"

At a stroke a "document" would not be a "document" until is is "formally transmitted".

What changed between January and April 2008? Quite simply on 7 April 2008 the European Ombudsman made his Recommendation saying all documents held had to be listed on the Commission's register of documents. The Commission had lost the argument so it sought to change the law.

This was not all, the Statewatch complaint revealed another yet another question.

Is the Commission installing a new information management system to "vet" which documents are listed on its public register?



The Commission's proposal to change the law by re-defining what is a "document" may have had a even more disturbing reason than simply it view that the definition is too wide. The Commission has argued since at least 1998 that each of its 20+ Directorate-Generals had their own document registration systems. But with the Amsterdam Treaty, and its commitment in Article 255 to greater openness, coming into force in 1999 and the Regulation on access to EU documents in 2001 the Commission could have been in no doubt as to its legal obligations. The Regulation clearly stated in Article 11 that pubic registers "shall be operational by 2 June 2002".

In its penultimate and final representations the Commission said that documents held under the current “Adonis” information management system cannot be put on the Commission’s public register as they would have to:

“be vetted, and possibly edited, by a person who is familiar with the
subject matter.”

This is said to be due to “the lack of security levels” in Adonis.

The Commission goes on to say that it will:

“start transferring records into a public register once the new internal single registration system (Ares) has become operational.”

This implies that the new “Ares” system have “security levels” built into it and that only certain documents – those which have been “vetted” or “edited” or otherwise cleared – will be placed on the public register.

If this is the case it would appear that the Commission is actually constructing a registration system (over the period 2008-2010) designed to deliberately circumvent the Regulation and Articles 3.a and 11 in particular.

The European Ombudsman (18.12.08), with whom we raised this issue, concludes that:

"the effect of the introduction of the new registration system on the contents of the Commission's register remains far from clear."


Tony Bunyan, Statewatch Editor, comments:

"We welcome the decision of the European Ombudsman and the support of the European Parliament in our bid to get the European Commission to fulfil its obligations under EU law to maintain a proper register of its documents.

Access to documents is the life-blood of a democracy. It allows citizens, civil society and parliaments to find out what is being proposed so that they have an informed debate and make their views known before measures are adopted or implemented.

Throughout the 26 months of correspondence the Commission has been utterly intransigent. It says it does not agree with the definition of a "document" as set out in EU law and does not agree that is is obliged to list all documents on its public register as set out in EU law. The European Ombudsman and the European Parliament have called on the Commission to act on its obligations under EU law yet it refuses to do so.

This refusal is compounded by the fact that the Commission is charged under the Treaties with enforcing the implementation of EU law, especially EU Regulations. If the Commission, the custodian of EU law, can simply ignore the law why should not other institutions and agencies covered by the Regulation do the same? The Commission's refusal to act is simply unlawful, they have to be called to account."

Documentation - chronological


1. European Ombudsman: Press release:The European Ombudsman criticises Commission for inadequate register of documents (29 January 2009)

2. European Parliament adopts Resolution: Resolution on public access to European Parliament, Council and Commission documents (implementation of Regulation (EC) No 1049/2001): Rapporteur: Marco Cappato (pdf):

3. European Ombudsman: Issues detailed Critical Remark: 18.12.08 (pdf)

4. Statewatch response to Commission's final response: 6.10.08 (pdf)

5. European Commission: 18 August 2008: Final response to Recommendation

6. European Ombudsman: 7 April 2008: European Ombudsman issues Draft Recommendation giving the Commission until 15 July 2008 to [1] accept the Ombudsman's decision and [2] to provide to the Ombudsman a "description of the measures taken to implement the draft recommendation".

7. Statewatch responds to Commission: 7 March 2008 (pdf)

8. On 22 January 2008 the Commission finally responded - given that it did not budge an inch it is hard to see why it took over six months to reply to the Ombudsman.

- When the Ombudsman did not hear from the Commission by 15 December and on 10 January 2008 wrote to the Commission asking for a response to the letter of 5 July 2007 by 31 January 2008.

9. 25 October 2007: Letter from the European Ombudsman stating that the Commission have asked for a further delay until 15 December 2007 in responding to the Ombudsman's letter of 5 July below

10. 5 July 2007: Letter from the European Ombudsman states that the further complaint on Article 12 cannot be taken up in this context but attaches a three-page letter from the Ombudsman to the Commission seeking clarification of their position

11. 27 June 2007: Statewatch responds to the Commission's letter

12. 22 May 2007: after six months the Commission sends in its response to the complaint

13. 11 October 2006: Statewatch lodges complaint against the Commission for its failure to maintain a proper public register of documents (Article 11 of 1049/2001)

The Regulation on public access to EU documents (pdf)

Commentaries

Access to documents in the EU: When is a “document” not a “document”? (pdf) Analysis by Tony Bunyan

Speech by Professor Steve Peers on behalf of Statewatch at the hearing in the European Parliament on 2 June 2008 (pdf)

Background


1. Since 1996 Statewatch has taken ten complaints to the European Ombudsman concerning the EU Regulation on public access to documents (1049/2001) against the Council of the European Union and the European Commission. All 10 have been successful- and nine of them have led to an increase in the right of access for all.

2. The complaints have been lodged by Tony Bunyan, Statewatch Editor. In 2001 European Voice newspaper selected him as one of the "EV50", one of the the fifty most influential people in the European Union over the year for Statewatch's work on access to documents in the EU. He is also author of Secrecy and Openness in the EU (Kogan Page (1999) and an updated online version on: Secrecy and openness in the European Union - the ongoing struggle for freedom of information (2003).

3. Statewatch is working with a coalition of civil society groups for changes in the Regulation on public access to documents as the European Parliament and the Council of the European Union are discussing changes to the Regulation: Observatory: Regulation on access to EU documents: 2008-2009 For full background on the struggle for openness in the EU see Statewatch Observatory: FOI in the EU

For further information - on Thursday 29 January 2009


Tony Bunyan can be contacted on:
00 44 208 802 1882
or by e-mail: office@statewatch.org

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