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New draft Council position on access to EU documents from the Swedish Presidency - existing code undermined
01 April 2001
A new draft of the Council (the 15 EU governments) common position on the new code of access to EU documents is being discussed at COREPER today (4 April). COREPER is comprised of the permanent Brussels-based representatives of EU member states. The previous draft of 15 February is amended in a number of ways which partly reflect the discussions with the European Parliament and partly presents some of the more controversial issues in a more subtle, disguised, form. Full-text:
Text
In particular: 1) the inclusion of an entirely new provision on "sensitive documents" emanating from the infamous "Solana Decision" and subsequent changes to meet NATO demands; 2) elevating the significance of Declaration no 35 in the Amsterdam Treaty to allow EU member states to have a "veto" over access to their documents. This Declaration was introduced at the last minute during the Amsterdam negotiations to pacify the "dinosaur" member states, now it would contaminate the citizens' right of access.
This draft Council position would also significantly undermine rights available under the current code of access to EU documents. The European Parliament's representatives have consistently said they would not support any proposal which undermine current rights. Analysis:
Council draft position undermines existing rights
Tony Bunyan, Statewatch editor, commented:
"That the Swedish Presidency of the EU has improved the draft it inherited from the French Presidency should come as no surprise. But it would still leaves us with a code of access that undermines existing rights and is quite unacceptable.
There is no way the European Parliament can agree to this text if it wants to maintain existing rights of access under the 1993 Decision and, in the spirit of the Amsterdam Treaty, improve and "enshrine" the citizens' right of access."
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ANALYSIS of the Council draft common position
Article 1: sets out the purpose.
Article 2: covers "Beneficiaries and scope".
This provision has changed from the 15 February draft. While it still includes the overall commitment in 2.3 that the measure would apply to "all documents held by an institution a new 2.5. provision has been added covering "sensitive" documents (see below).
Article 3: covers the "Definition" of a document. This has changed and is an improvement on the earlier versions as it retains the definition in the existing code (3.a). But this is then undermined by 3.b. which defines "third parties" and includes EU member states (governments) as "third parties" (member states form the Council of the European Union and cannot be "third parties").
DELETE "Member states"
Article 4: covers the "exceptions" (ground on which access can be refused)
Article 4.1. says the institutions "shall" refuse access "where disclosure would undermine the protection of".
AMEND: i) change "shall" to "may"; ii) insert "significantly" ("significantly undermine") and iii) insert add the end of 4.1: "unless there is an overriding public interest in the disclosure"
Article 4.3. access to documents which contain "individual opinions for internal use as part of deliberations and preliminary consultations" may be refused "even after the decision has been taken if disclosure would seriously undermine its ability to carry out its duties unless there is an overriding public interest in disclosure". This leaves unacceptable discretion in the hands of the institutions as the standard, "ability to carry out its duties", is far too, wide.
DELETE second sentence of 4.3.
Article 4.4
This gives EU member states a "veto" over access to documents which they have submitted to the decision-making process and the ongoing practice of the EU. It gives an absolute right of "veto" with<