EU
Regulation on public access to documents:
the European Commission is the problem
 
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- in its 2008 proposal the Commission put secrecy above openness by increasing the power of the institutions to refuse access to documents above expanding the public's right to know

- the Commission failed to withdraw its 2008 proposals which are incompatible with the Lisbon Treaty, because of its proposal to change the definition of a "document":

"the definition of 'document' is an issue of primary law, ie the interpretation of the Treaty by the Court of Justice - it is not open to the institutions to define it in a way which limits the correct interpretation and application of the Treaty. In other words the rules on access to documents must apply to all 'documents' as defined by the Treaty - they cannot exclude entirely from their scope anything which is a document as defined by the Treaty." (Professor Steve Peers)

-
the Commission 2011 proposals fails to abolish Article 4.3 of the Regulation in line with the Lisbon Treaty: the institutions' "space to think" in secret

- for two years the Commission has "sat on its hands" and failed to respond to the "institutional impasse" between the Council and the European Parliament it should now produce a completely new "Lisbonised" proposal



Much of the recent discussion on amending the EU Regulation on public access to documents: Regulation (1049/2001) has centred on the role of the European Parliament whereas the power to end the "institutional impasse", in place since 2009, lies with the Commission.

First, the Commission did not make proposals to amend the Regulation until the end of March 2008 Commission proposals (30.3.08) even though, under Article 17.2:

"At the latest by 31 January 2004, the Commission shall publish a report on the implementation of the principles of this Regulation and shall make recommendations, including, if appropriate, proposals for the revision of this Regulation and an action programme of measures to be taken by the
institutions."

So it was four years late.

Second, the direction of the Commission's 2008 proposal was not to increase public access but rather to increase the power of institution's to refuse access. This is epitomised by its proposal to change the definition of a "document" which has been in place since 1993.

The European Commission (which is now dominated by centre-right EPP Commissioners) has proposed that the definition of a "document" is restricted to cover only the final version of a document which is "formally transmitted" (and would exclude documents concerning prior so-called "internal discussions"). In other words, citizens and civil society would never see which ideas are accepted or rejected or who proposed or opposed what - totally undermining democratic accountability.

The 1993 Code of Access to Council and Commission documents put into effect a Declaration in the Maastricht Treaty (1991), and it said a:

""Document" means any written text, whatever its medium, which contains existing data and is held by the Council or the Commission."

The current 2001 Regulation says in Article 3.a:

"(a) ‘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"

But the Commission want to change it to:

"«document» means any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution"

Professor Steve Peers, University of Essex, comments:

"the definition of 'document' is an issue of primary law, ie the interpretation of the Treaty by the Court of Justice - it is not open to the institutions to define it in a way which limits the correct interpretation and application of the Treaty. In other words the rules on access to documents must apply to all 'documents' as defined by the Treaty - they cannot exclude entirely from their scope anything which is a document as defined by the Treaty."

The Treaty lays down that there is a general right of access to documents, any document, whatever its medium and that any restrictions on this right have to fall within Article 4 (Exceptions) and cannot involve changing the definition of a document. For example, there cannot be a special rule removing security-related documents (the "Solana coup" in 1999) entirely from the rules, or removing entirely some other categories of documents as the 2008 Commission proposal suggests.

Third, when Statewatch took a complaint to the European Ombudsman against the Commission for its failure to maintain a proper public register of documents (Article 11) the President of the Commission simply responded that it did not accept the definition of a "document" in the Regulation. Despite the fact that the Commission, like the other institutions, is bound by EU law it simply rejected the Ombudsman's finding that the register must contain references to all documents. See: Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf) and European Ombudsman finds that the European Commission "has no intention of trying to complete its registers" See: Ombudsman: Follow-up to Critical and further remarks: How the EU institutions: How the EU institutions responded to the Ombudsman's Recommendations in 2008

The "state of play" on amending the Regulation

The Commission 2008 proposals (30.3.08) found very few friends and not just on the proposal to change the definition of a "document", see Statewatch's Analysis: article-by-article commentary These include: a) Article 2(6), second sentence (indefinite refusal of access to corporate documents); b) Article 3(a) (definition of ‘document’); c) Article 4(5) (personal data); d) Article 5(2) (Member States’ documents); and e) Article 12 (registers of documents).

The European Parliament's draft Report (12.5.10) contains many good proposals which deserve to be supported, see Statewatch Analysis of preceding draft 22.3.10 and EP draft report 22.3.10

Crucially, the parliament's rapporteur, Michael Cashman MEP, is fully committed to keeping the present definition of a "document". And his draft report would also abolish the so-called "space to think" for the institutions by removing Article 4.3 of the Regulation (see below).

As to the Council the substantive points in the Council Legal Service's Opinion are clearly stated in Council document no: 7791/09 (20 March 2009, pdf). The Council Legal Service argued that the EP could amend the Commission proposals but could not introduce new amendments of its own - this rejecting 27 EP amendments. The Opinion of the Legal Service of the European Parliament's (EP): Opinion on the EPs' amendments (issued in 14 April 2009) took on, and rejected, the arguments used by the Council Legal Service.

The Council's refusal to consider the 27 EP amendments led the parliament refusing to adopt its 1st reading position so discussions with the Council could not start. Thus was the "institutional impasse" created.

Overview: The "State of Play" on amending Regulation 1049/2001 on public access to EU documents - three column chart showing the Regulation, Commission proposals and European Parliament's draft report.

The Commission's new proposal - 2011

In March 2011 the Commission put forward an additional proposal to "Lisbonise" the Regulation: Full-text of amendment (pdf) which is simply limited to extending the Regulation to EU bodies and agencies and failed to "Lisbonise" it.

First, it failed to recognise that its 2008 proposal to change the definition of a "document" is totally incompatible with the Lisbon Treaty (as referred to above). On these grounds alone the Commission should have presented an entirely new proposal.

Second, it failed to proposed the deletion of Article 4.3 of the Regulation which states that:

"Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure." [emphasis added]

This "exception" is used to refuse access to documents because "disclosure of the document would seriously undermine the institution's decision-making process". The Council routinely uses this power to deny access to documents "under discussion", and in some cases even after a measure has been adopted, which are part of the legislative process. It is unthinkable at the national level that documents and records of legislative discussions would be kept secret from the public - yet this is how the Council has operated for years under Article 4.3.

See: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments which argues that:

"the "space to think": Article 4.3 is used to deny access to documents concerning measures "under discussion" because it could "seriously undermine the decision-making process". On the contrary Article 4.3 "seriously undermines" democracy because the public and civil society have no right to know what is being discussed until after a measure is adopted (and sometimes not even then)

- the Commission used Article 4.3 to refuse access to documents in over 25% of initial applications and for the Council the figure was 39.2% (plus an undefined proportion of the 28.2% refused for multiple reasons)
[2009 Annual Reports]"

Tony Bunyan, Statewatch, Director comments:

"Open, transparent and accountable decision-making is the essence of any democratic system. Secrecy is its enemy and produces distrust, cynicism and apathy among citizens and closed minds among policy makers."

We have been waiting since 1991 for the public's right to know to be enshrined in EU law for perpetuity. Now it is the time for the Commission to present proposals which put openness and the right of the public to know what is being decided and done in its name into the force."

Tony Bunyan

For background documentation and developments see: Observatory: the Regulation on access to EU documents: 2008 - 2011

For the full history and documentation on Access to documents in the EU see Statewatch's Observatory: FOI in the EU: Reporting on openness and secrecy in the EU since 1992


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