Germany and France lead fight for more secrecy by EU governments and UK sits on the fence - Council position on access to documents even worse than the Commission's



The draft position of the Council of the European Union on the new code of public access to EU documents is even worse than the unsatisfactory Commission proposal.

The views of the member states on the Council vary widely with some trying to change the draft position to allow even less access than at present.

Statewatch has carried out an Audit of the amendments put forward by EU member states to the Council's draft position. It shows that Germany and France are calling for even more secrecy and less access to documents than in the already deficient Council position. Denmark, Netherlands, Finland and Sweden lead the way in arguing for more openness. The UK's position is to say the least equivocal and certainly does not match its previous support for freedom of information in the EU.

Overall the Audit and Analysis shows that the majority of EU governments are: i) not backing openness, ii) not acting to "enshrine" the citizens' right of access to EU documents by faithfully putting into effect the commitment in Article 255 of the Amsterdam Treaty and iii) are even using the new code to remove existing rights under the 1993 Decision.

Statewatch audit of proposed amendments
                                                                                 Amendments for:           Eight key criteria*
Member state                                                                                  More access/Less         More access/Less
1. Denmark 15 1 6 2
2. Netherlands 13 - 6 2
3. Finland 10 1 6 2
4. Sweden 10 - 7 1
5. Italy 5 3 1 7
6. Belgium 5 3 - 8
7. Spain 3 3 - 8
8. Greece 1 1 - 8
9. UK 5 6 2 6
10. Ireland - - - 8
11. Portugal - 2 - 8
12.Luxembourg 1 3 - 8
13. Austria 1 4 - 8
14. France 3 9 1 7
15. Germany 1 12 1 7

* The "eight key criteria test" is based on maintaining the rights under the present code of access and/or giving new positive rights:

1) whether the measure should be a "Regulation" which could override national freedom of information laws (Council same as Commission);

2) Article 1: giving right access to non-EU people (Council same as Commission);

3) Article 3: opposing "space to think" (Council same as Commission, different wording);

4) Article 5: opposing "repetitive applications" (Council worse than Commission);

5) Article 4: "harm test standard" (Council worse than Commission)

6) Article 4: opposing giving third parties and organisations a veto over access within the EU (Council worse than Commission)

7) Article 8: supporting the freedom to reproduce documents except for commercial purposes (Council same as Commission).

8) The "Solana Decision" has not been incorporated in the Council draft position, however, the vote in COREPER, 12-3, is highly indicative. Only Netherlands, Sweden and Finland voted against this decision.

"Silence" on an issue counts as a negative position.

The new measure, to be agreed by May 2001, is meant to "enshrine" the citizen's right of access to documents under Article 255 of the Amsterdam Treaty. The current right of access to EU documents is under attack on two fronts:

1) The Commission's proposed measure undermines the fundamental principle, established since 1993, that citizen's have the right of access to any document subject only to specific exceptions. It proposes to permanently exclude whole categories of documents from public access to ensure the so-called "space to think" for officials (public servants).

2) In July without consulting anyone the Council adopted, by 12 votes to 3, the "Solana Decision" to permanently exclude from public access whole categories of documents covering foreign policy, military and "non-military crisis management" - and any other document whether classified or not which refers to these issues. The Council's draft position does not incorporate this Decision which is to be the subject of a separate report.

The Council's draft position on 18 August is exactly the same as that in the Presidency working document dated 25 May. The 18 August document adds the positions of member states.

The Council will not release their draft common position nor the earlier Presidency working documents nor are they listed on the public register of documents. Citizens using the register will not know they exist - this is a classic example of secrecy even on freedom of information.

However, it is clearly in the public interest that citizens should know what the Council is proposing to do, and the positions taken by their governments, before the common position is adopted on 20 November.

Tony Bunyan, Statewatch editor, commented:

"Our worst fears may be realised. The Commission and the Council are attempting to use the commitment in the Amsterdam Treaty to "enshrine" the right of access to documents to turn the clock back and to give citizen's even less access than they have now. It seems for most EU governments "openness" makes good "spin" but they do not really believe in it - as the Council has said too much openness "could fuel public discussion".

They do not seem to have learnt any lessons from the past that openness and access to documents is the best check against corruption, fraud and the abuse of power. Openness is a fundamental democratic standard, it is to be hoped that the European Parliament will fulfil its role as the guardian of the peoples' rights."

Council's draft common position     "Solana Decision"     Commission's proposed measure

Further information: ring Statewatch office: 00 44 208 802 1882



Analysis of the current Council's draft position and that of the of Member States on the code of access set out in SN 2970/3/00, dated 18 August:

Introduction

This document represents the current position of the Council's consideration of the proposed new code of access to EU documents put forward by the Commission. The Council's reaction has been discussed in the Working Party on Information on 18 February, 3 and 17 March, 12 April, 5 and 12 May, 23 June, 14 and 28 July 2000.

It is intended to "clean up" the Council position and to put a report to the General Affairs Council on 20 November with a view adopting a common position.

The document contain two elements:

The draft common position of the Council in relation to the Commission proposal and proposals from member states to the draft position.

Analysis, article by article

The Council draft does not cover the Recitals which contain several contentious issues.

On the overall question of whether a "Regulation" is the proper instrument, especially in the light of its binding nature:

Denmark, Netherlands, Finland, Sweden and UK question whether it should be a "Regulation"

Article 1 - General principles and beneficiaries

This is amended by deleting the words "to the widest possible" from "shall have the right of the widest possible access"

Comment: step backwards

Denmark, Netherlands, Finland, Sweden and Italy back giving right of access to non-EU applicants (thus including all those affected by the EU's external policies and practices)

Article 2 - Scope

Article 2.1 in the Commission draft reads:

"1. This Regulation shall apply to all documents held by the institutions, that is to say, documents drawn up by them or received by from third parties and in their possession."

As drafted this is an improvement on the existing code because it includes documents received from third parties (however this is overridden in the Commission draft in the exceptions in Article 4).

In the draft Council position there is a positive deletion whereby access to documents from third parties would not be limited to those received after the Regulation comes into force.

Deleted too from this Article but put back in Article 7 is Article 2.2 which says the Regulation would not apply to documents which have already been published or are accessible (neither the Commission's nor the Council's draft explain what the effect of this is, see Article 7).

Footnote 8 says that the question of documents relating to defence and military matters "would be addressed in a separate paper" - the insertion of the "Solana Decision" is to come.

Comment: The first change is positive.

Germany has a general reservation "as long as no solution was found to the fundamental question" namely how to allow public access and "the protection of documents needing such protection".

Germany also asks the Legal Service to look at how "the Regulation could adversely affect the rights of third parties" (Germany asks for the opinion of the Council Legal Service on numerous occasions).

Article 3 - Definitions

Article 3 is amongst the most contentious in the Commission draft by seeking to change the current right of access to any document (subject to specific exceptions) by excluding documents which are defined as giving officials the so-called "space to think".

The Commission's draft reads:

"document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); only administrative documents shall be covered, namely documents concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, excluding texts for internal use such as discussion documents, opinions of departments, and excluding informal messages"

The Council draft position reads:

"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, excluding:

- informal messages

- contents which express opinions or reflect discussions and the provision of advice as part of preliminary consultations and deliberations within the institutions"

Comment: the effect of the Council version is little different from that of the Commission. Moreover, "preliminary consultations" are quite different from "deliberations" although both are clearly part of decision/policymaking process and should be in the public domain. The Commission and the Council would exclude permanently from access whole categories of documents.

Only Netherlands and Finland wanted this new formulation on the "space to think" (informal documents) deleted. Germany recorded its view that it should be retained.

The Commission's draft, under Article 3.c. seeks to define the institutions affected including what comprises the "Council" and the Council's draft position then reveals an extraordinary discussion between the member states. They have amended the Commission definition of the "Council" to include "and its General Secretariat" and ten member states agree with this. However, Footnote 30 quotes from the opinion of the Council's Legal Service (7594/00, dated 5.4.00) as follows:

"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.

Nine member states recorded their opposition to the view of the Legal Service - the ones who did not were France, Sweden, Greece, Portugal, Luxembourg, Austria.

New Article 3a

The Council draft then introduces a new "Article 3a" (Article 5.1 in the Commission's version). It says all applications for documents must be made in "one of the languages" of the EU - which goes against applications from outside the EU.

The Article also adds a let-out that an institution must only use "reasonable administrative effort" to identify a requested document.

The Council draft leaves in the infamous "repetitive applications" clause in the Commission's draft - the current code says "repeat applications" which was challenged successfully by Statewatch through the European Ombudsman. The term "repetitive" can be applied to diligent researchers who apply for documents in the same field (ie: justice and home affairs) on a regular basis. It gives the institutions arbitrary powers to refuse access.

The Council version however makes the already bad Commission version even worse by changing "shall confer with the applicant informally, with a view to finding a fair solution" to "may confer". The Council draft is worse in another respect too, it add that the institutions will have discretion (which is always exercised against the applicant) not just for "very large documents" but also for "a very large number of documents".

The issue of "repeat applications", which the Council tried to argue were "repetitive", and a "very large number of documents" were taken by Statewatch to the European Ombudsman who ruled against the Council.

Only Denmark, Finland and Sweden are opposed to the inclusion of the term "repetitive" in place of "repeat". France wants to make the provision even worse by inserting "repetitive or blatantly abusive applications".

Article 4 - Exceptions

Sets out the exceptions - specific grounds on which a document can be refused.

The Council draft is worse than the Commission's. Where the Commission's draft says access may be refused "where disclosure could significantly undermine the protection of" the Council have deleted the word "significantly".

The Council want to change the Commission's exception "defence and international relations" to "defence and military matters" and then create a separate exception for international relations. The term "military matters" is the same as that in the Cashman/Maij-Weggen report and is equally far to general. No distinction is made between policymaking and operations and "matters" could clearly extend to "non-military crises management".

The Council draft does remove "the effective functioning of the institutions" from the mandatory grounds for refusing access and puts it back in a new Article 4.2. where access to such documents "may be denied".

The Council draft re-words the right of EU Member States and non-EU states and international organisations and makes the grounds stronger, "the institutions shall not release" such documents without their "prior agreement". This gives EU Member states and non-EU states and international organisations a veto over access to documents to EU citizens. Such a veto is quite unacceptable in a democratic system.

Comment: The Council draft is worse than that of the Commission (which is already bad).

Article 5 - Processing of initial applications

Deals with initial requests for documents. Where the Commission's draft proposed that the failure of an institution to reply within the time-limit should be seen as a negative response the Council deletes "negative response" and suggests that the applicant is "entitled" to make a confirmatory application. The change is semantic, the applicant can make a confirmatory application to what is in effect a (deleted) "negative response".

Article 6 - Processing of confirmatory applications

This deals with confirmatory applications (an appeal against refusal of access to documents). One of the few positive proposals in the Commission's draft is that a failure to reply to a confirmatory application within the time-limit would be treated as "a positive response". This is deleted by the Council with only Ireland objecting.

Article 7

Covers "exercising" the right of access. The Council draft puts in the clause saying: "If a document is already published and is easily accessible to the applicant" they will be told where to find it. This simply maintain the elitism of the Commission's proposal: "already published" could refer for example to the Schengen acquis in the Official Journal (September 2000) which would cost just under £50, and how is the institution to know if a document is "easily accessible"?

All member states agreed with this position.

In addition, Belgium suggested that: "the word "legally" should be inserted, in order to discourage leaks".

Deleted is the Commission's draft proposal that documents should be supplied in the language preferred by the applicant.

Only Spain, France and Luxembourg wanted to keep the Commission's draft.

Article 8

The current 1993 Decision on access says that applicants may not reproduce documents obtained "for commercial purposes through direct sale" without permission. This allows documents to be reproduced by researchers, journalists and academics - it is fundamental in a democratic system that public policy should indeed be public.

The Council's draft position supports that put forward by the Commission. This adds the words "or exploit it for any other economic purpose without the prior authorisation of the right-holder" (the term "right-holder" was inserted by the Commission in February).

A minority Denmark, Netherlands and Sweden propose that the Article is deleted and Germany agrees.

Article 9

Covers the requirement for institution to provide a public register of documents.

Sweden proposes that an "obligation to register all documents" be included.

The Council position then adds a provision that a "list of the bodies and committees" in the Council, Commission and European Parliament be made public.

France, Italy, Portugal and the UK do not like this suggestion and propose that it is deleted.

While France and Luxembourg support the Council's Legal Service view which wants this left to "the discretion of each institution" because such a public list:

"could be seen as an invitation to request access to all documents considered or drawn up by the preparatory bodies and committees without specifying which ones. This would run contrary to the objective of the register of documents, which was precisely to enable the citizen to identify the specific documents which interest them, thereby reducing the institution's administrative burden involved in researching and dispatching documents which do not interest the applicant."

Comment: The whole point about the register of documents is first that it does not locate each of them in the decision-making process and second the register does not contain all the documents.

Article 11

This contains the contentious provision:

"This Regulation shall be binding in its entirety and directly applicable in all Member States"

Denmark, Netherlands, Finland, Sweden and the UK have reservations on whether it should be a "Regulation" having a binding effect on member states freedom of information laws.

Germany believes "a Regulation is the correct legal form" and has asked the Council Legal Service for an assurance that:

"the text provides sufficient guarantees that the Member States would not undermine the Regulation by allowing access to European Union documents in their possession."



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