EU institutions to meet to try and agree "compromise" on the new code of access to documents - revised 24.1.01
The EU institutions - the Council (the 15 EU governments), the European Commission and the European Parliament - are to holds a series of "trilogue" meetings to try and resolve the substantial differences between their drafts of the new code of access to EU documents. The new code of access is to give effect to Article 255 of the Treaty establishing the European Communities (TEC) agreed in Amsterdam in June 1997. The deadline set by the Treaty is 1 May 2001.
The planned timetable reads as follows:
24 January: First "trilogue" between: the rapporteurs from the European Parliament, the Presidents of the two parliamentary committees most concerned (Watson/Napolitano), the Swedish Presidency of the Council, Ambassador Lund, and other representatives of the Council and representatives of the Commission. The Presidency of the Council will present the state of play on work in the Council on the new code and highlight the points on which there are divergences between the institutions and points on which a "compromise" may be agreed.
25 January: the COREPER meeting (the permanent representatives of EU governments based in Brussels) will be informed of the result of the meeting on 24 January. The agenda for this meeting of COREPER II has only one item on its agenda which is to be held in a "restricted session", it is agenda item no 33 on : "Proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (article 255) = Report from discussion on 24 January between representatives from the European Parliament, the Council and the Commission" - all the officials except the permanent representatives have to leave the meeting.
6 February: 2nd "trilogue" meeting with a debate, with texts, on points of "compromise" and alternative wordings.
7 February: COREPER informed of the results of the meeting on 6 February.
14 February: possible 3rd "trilogue" compromised just of the Presidents of the three institutions.
26-27 February: possible adoption of common position by the Council at the meeting of the General Affairs Committee.
27 February: Vote in the lead Committee on Citizens Freedoms and Rights in the European Parliament on "compromise amendments".
28 February (or 13 March): vote in the plenary session of the European Parliament on an amended report containing the "compromise" text and on the legislative resolution (delayed from the plenary in November 2000).
The timetable leaves little time between the 3rd "trilogue", on 14 February, and the adoption of a "compromise" text by the European Parliament committee, on 27 February, for civil society to make its views known.
Is "compromise" possible?
There are fundamental differences between the draft codes on the table from the three institutions.
To take just one example, the definition of a "document". Under the existing code of access to documents (in place since December 1993) a "document" is defined as:
"any written text, whatever its medium, which contains existing data and is held by the Council or Commission."
The current code thus says that any documents is accessible to citizens subject only the the "exceptions" laid down - where the institution has to justify for each and every document the grounds for refusing access.
The European Commission in its draft says a "document" everything but:
"excluding texts for internal use such as discussion documents, opinions of departments and excluding informal messages" (emphasis added)
The European Parliament report says:
" "document" shall not mean informal information in the form of written messages designed to enable personal opinions to be given or ideas to be freely exchanged ("brainstorming") within institutions."(emphasis added)
Under "Justification" the parliament report says: "Consistent with current practice, "internal documents" should not be excluded from the scope of the Regulation".
The draft Council common position (22.12.00) says the code should cover all documents:
"excluding those for internal use as part of preliminary consultations and deliberations within the institutions such as discussion documents, unfinished documents or draft documents and documents whose content reflects personal opinions." (emphasis added)
In addition, the Commission argues for a new "exception" to allow institutions to refuse documents which would undermine "the effective functioning of the institutions") and the Council want the the power to refuse access where no decision on a document has been made where it "could seriously undermine the institution's decision-making process".
The three different versions of the "space to think" for officials reflects the fact that which documents can be excluded is either impossible to define or is simply a let-out clause to give the institutions a general discretionary power to refuse access to certain categories of documents. Moreover, the idea that public servants (institution officials) have the so-called "right" to "space to think" out of public view or scrutiny should be unacceptable in a democracy.
The confusion over what documents are covered by the term "document" was well illustrated in the August draft of the Council's common position. Nine EU governments then wanted (it has now been withdrawn) the definition of the "Council" as an "institution" to include the "General-Secretariat" (that is, everyone who works for the Council of the European Union). The General Secretariat and the Council Legal Service were up in arms, the opinion of the Council's Legal Service (7594/00, dated 5.4.00) read:
"the Council's Legal Service continues to think that the inclusion of the Council General Secretariat within the scope of the present Regulation is contrary to the Council's current interpretation and practice, according to which a "Council document" is taken to mean only documents held by all members of the Council or their representatives and delegates in one of its preparatory bodies. The extension of the scope of the present Regulation to cover documents of the General Secretariat would lead to the situation whereby the public could obtain access to documents which were not even known to the members of the institution and/or their delegates and representatives."
The Council's Legal Service interpretation has no basis in the present 1993 Decision and is a classic case of how discretion is exercised by officials.
Council's draft common position
The results of the COREPER meeting on 18 December left on two areas of disagreement between the EU governments (document no: 14938/00, 22.12.00).
The first concerns public access to documents from "third parties". The proposal (Article 4.3) would treat EU member states (who comprise the Council of the European Union) as "third parties" and no document submitted by them could be released without their consent. Other "third parties", like non-EU states and international organisations (eg: USA and NATO), would be "consulted" by the institutions - in reality it is highly unlikely that a document would be released if the non-EU body objected.
The second outstanding issue concerns applications for EU documents, which have not been released, in member states (Article 5.5). This proposes that any application for a non-released EU documents has to be forwarded to the EU institution concerned - thus overriding national freedom of information laws. The same would apply if an application is made to an EU institution which did not originate the document - the request would be forwarded to the originating institution.
For background to the draft Council common position discussed at COREPER on 18 December see: COREPER the full-text of the 1 December draft is on: 1.12.00
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For full background documentation on the new code see: "Secret Europe"