Statewatch comments on the Cashman/Maij-Weggen "Explanatory statement"
to their report on access to EU documents
Overall the "Explanatory statement" shows an intent which is better than the actual detailed proposals in the report.
1. It opens with the statement that:
"the proposed Commission regulation implementing Article 255... only confirms the existing situation as defined in the Council/Commission code of conduct... before entry into force of the Amsterdam Treaty... the five years experience of the functioning of the code of conduct (which shows that access to documents is more of a reality for lobbyists in Brussels than for European citizens)..."
The Commission proposed regulation does not confirm the existing situation, it is a major step backwards from the present practice. The current Council Decision and Code of Conduct for the Commission was adopted in December 1993. The statement that access is a "reality" for lobbyists and not for citizens reflects the Commission's "spin" and is not true of access to Council documents.
The "Explanatory statement" does not seem to understand the present practice.
2. The "Explanatory statement" makes great play (p6) the need for the institutions to provide "information". This is line persistently taken by the Commission, that the provision of "information" is the real issue and that access to documents is secondary. The Commission does indeed provide much information, for example, on the internet, but this is not the same as the right of access to the primary source, documents. The Commission does not have a public register of documents and the number of applications for documents to the Commission has actually been falling over the past two years (which is no surprise). Whereas the Council does have a public register and a rising number of applications for documents.
3. The "Explanatory statement" makes some very good points about: a) the need for access to documents to include "agencies created by the institutions"; b) access to "preparatory documents of internal bodies in the institutions" (see below), although the caveat "as they are approved by the relevant body" makes this commitment ambiguous as this could mean after the measure has been agreed/adopted; c) that non-EU people and bodies should have access to documents; d) that documents produced and held by committees, working groups and agencies created by the institutions should be included; e) that each institution should set up a central point for applications - this would especially improve matters with the Commission.
4. There are, however, fundamental flaws in the Explanatory Report which are reflected in the report itself in the definition of a "document", the exceptions, third parties, reproducing documents and proposed repeal of community law:
Everyone would agree with the statement that:
"all documents should be accessible and exceptions to the right should be limited as far as possible"
i) The report then goes on to say that documents should be "classified by the author" when a document is produced. There are two problems with this idea. First, officials are not "authors" in the traditional sense - officials are public servants and when acting in their official capacity have no rights of "authorship" (as private citizens they would of course have "author's rights" over a novel or song written by them). The term "originator" would be more accurate. Second, the classification of a document by the official who wrote it would give then unacceptable discretion with the strong temptation to classify a document "just in case" it might be a problem.
ii) The exceptions (specific grounds on which access to a document can be refused) include "military matters" (the same new term used in the draft common position of the Council of the European Union). This term could clearly include "non-military crisis management" introduced under the now in-famous "Solana Decision". It also makes clear that although this Decision would be repealed by the new code that the reports authors, Cashman and Maij-Weggen, would accept a new formulation having the same effect.
iii) It seeks to exempt, under six different provisions, the European Parliament from any restrictions on its access to documents. As argued in Statewatch's proposed amendments to this report such proposals cannot be introduced under Article 255 of the Treaty on the European Communities as agreed under the Amsterdam Treaty and would probably be challenged in the courts as being unlawful.
iv) It seeks to abolish the 1983 Regulation on EC archives. The authors of this report clearly have not properly examined this Regulation and the implications of their proposal.
v) One of the central confusions in the Cashman-Maij-Weggen report is on the definition of a "document" which is underpins any right of public access. In the "Justification" to Recital 9 their report says:
"Although there should be "space to think" internal documents should not be excluded from the scope of this Regulation"
The report thus grants the Commission its "space to think" for officials but then seeks to create a distinction, in the Explanatory report, between:
"informal documents, such as personal correspondence which can be excluded from the scope of the Regulation and internal documents which must not be excluded"
Is it really being suggested that the meaning of:
"personal correspondence" (Explanatory report, Part 2))
is the same as:
""document" shall not mean informal information in the form of written messages which serves the provision of personal opinion or the free exchange of ideas ("brainstorming") within the institutions." (Final report, A5-0318/2000, part 1)
Where is the line to be defined between:
a) "internal documents" and "informal documents"
b) a so-called "barn-storming document"?
Who will decide?
As formulated by Cashman-Weggen the distinction is unclear and imprecise and therefore open to abuse (hiding whole categories of documents).
vi) The Explanatory report does not deal in any detail with the idea that Member States and "third parties" (non-EU governments and international organisations - like NATO) could "veto" access to any document regardless of its classification. In the main report, Amendment 36 Article 4c, EU Member States and third parties would be allowed to: withhold access according to one of the exceptions (such non-EU bodies would not accountable to the EU Court of Justice); allow them to submit a "public" (sanitised) version; and institutions would enter negotiations with these bodies if it decided to release a document.
This provision gives "third parties" rights which are inappropriate in a measure concerning the rights of EU citizens.
Within the framework of the Council of the European Union new measures/initiatives are increasingly being put forward by EU Member States - it would be quite wrong for Member States to exercise additional powers to those they have as member of the Council itself.
Moreover, the "Justification" in the main report correctly states that the final decision to release a document from an EU Member State or third parties must rest with the EU institution, Amendment 36 does not give effect to this principle and needs to be changed (see Statewatch amendments).
vii) At present documents may be reproduced except for commercial purposes without permission. That is to say, documents concerning public policy and practice can be reproduced so that civil society can find out what is being discussed. The Commission has proposed that documents cannot be reproduced for "any other economic purpose".
The Cashman-Maij Weggen report proposes to delete this provision (which is a positive move) and to replace it with the right to reproduce subject to EU, international and national laws on intellectual property. However, there is no explanation of the effect of this in the report or Explanatory report and their proposal fails to distinguish between documents produced by "public bodies" (such as the Council, Commission and European Parliament) which should always be in the public domain and documents produced by a "private entity" which should be protected by these laws.
Overall the Cashman-Maij Weggen report is confused. There are some very good provisions (see point 3 above) but the inclusion of interinstitutional agreements lead to the conclusion that there are more new "rights" for the institutions than for the citizen. In addition there are a number of proposal which are potentially more restrictive and it is interesting that the new report from the Council Presidency is seeking to develop these.