Statewatch News online: "Brussels stitch-up" on new code of access to EU documents

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New code on access to EU documents:
"Brussels stitch-up" on the cards
- Council and EP rapporteurs agree "common text"
- Civil society groups reject "deal" between Council and European Parliament
updated 23 April 2001

The Council and the European Parliament rapporteurs, Michael Cashman (PSE) and Hanja Maij-Weggen (PPE), have agreed a "common text" for the new code of access to EU documents. The "deal" was done on 4-5 April when the EP delegation caved in and made three major changes to their report. The changes were:

i) wholesale incorporation of the Council article on "Sensitive documents" (classified documents)
ii) wholesale incorporation of the Council draft on public registers and direct access to documents (which has masses of loopholes)
iii) agreeing to the Joint Statement at the end of the text thus removing the application of the measure to cover agencies and bodies created by EU institutions (a "deal" negotiated by the three legal services).

Civil society groups reject "deal" between Council and European Parliament

The "deal" agreed in secret "trilogue" meetings and informal negotiations by officials has been condemned by civil society groups and academic commentators as fundamentally undermining existing rights under the 1993 code on access to documents and as a betrayal of the commitment in the Amsterdam Treaty to "enshrine" the citizens' right of access to EU documents. They have submitted to all the European Parliament rapporteurs a detailed analysis calling for 17 deletions and 6 amendments to the draft report or its complete rejection.

Updated 23 April 2001:

The "compromise/common texts" of the Council and the EP delegation:

Council version of "common text": Council (pdf) Council (html)
Cashman (PSE)/Maij-Weggen(PPE) version of "compromise/common text": Text (11.4.01, Word 97) Text (17.4.01, pdf)
More compromises - amendments to the amendments: 19.4.01: Cashman (PSE)/Maij-Weggen(PPE): Text (Word 97)

Amendments to the "compromise/common text"

Amendments to the "compromise text" from the Green/EFA group and the ELDR (Liberals): Amendments (Word 97)

The view of civil society

The position of  Statewatch, the European Federation of Journalists (EFJ), European Citizens Action Service (ECAS), European Environmental Bureau (EEB) Professor Deirdre Curtin, Utrecht University and a member of the Standing Committee of Experts ("The Meijers Committee", Utrecht) and Ulf Oberg, Stockholm University: Critique of the "Brussels stitch-up" (html)

Do the proposed "common text" agreed by the Council and the EP delegation lower current standards? Analysis by Steve Peers, Reader in Law, Human Rights Centre, University of Essex: Lower standards

Update 23 April 2001

After the Committee on Citizens' Freedoms and Rights on 11 April was circulated with a new draft set of amendments by Cashman (PSE)/Maij-Weggen(PPE) a deadline was formally set for amendments to be submitted by 12.00 (noon) on Wednesday 18 April. The Green/EFA group submitted a fundamental set of amendments (in the name of Heidi Hautala) and the ELDR group submitted a few amendments by the deadline.

However, Cashman/Maij-Weggen submitted a further set of amendments to their own amendments, dated 19 April. This followed further negotiations over the Easter weekend to meet further demands by the Council for changes to the text: More "compromises": Notes on "amendments to the amendments" The MEP rapporteurs from the five other committees with a remit (locus) on this issue did not see these new amendments before submiting their own - for the leading rapporteurs to introduce such amendments has happened before but this has been to ensure agreement within the committee not with the Council.

During the secret "trilogue" the European Parliament delegation has been informed by the Swedish Presidency that a number of major issues are "not negotiable", for example, the "right" of EU governments to "veto" access to their documents, the whole issue of "sensitive documents" (the infamous "Solana Decision"), and now the inclusion of a "public interest" test for the refusal of access under the "exceptions" (Article 4.1). The parliament's draft position has accepted each of these refusals.

The planned timetable for the "compromise/common text" is as follows:

23 April: Special meeting of COREPER (the committee of permanent representatives of EU governments based in Brussels) to discuss the effect of the draft on national freedom of information laws

25 April: vote in the Committee on Citizens's Freedoms and Rights on the amendments (and the "amendments to the amendments")

3 May: Plenary session of European Parliament in Brussels votes on amended report from the Committee (no further amendments allowed)

(possible) 14-15 May: General Affairs Council reaches "political agreement" on the report adopted by the parliament

Story as filed on: 18.4.01: This move on the part of the EP's delegation means that the "common text" will be put to the meeting of the parliament's Committee on Citizens' Freedoms and Rights on 24-25 April (amendments were lodged today Wednesday, 18 April 12.00 noon).

Under rule 69 of the European Parliament's Rules of Procedure a report referred back to a Committee - which happened in the EP's plenary session on 16 November 2000 - to allow the possibility of a compromise between the European Parliament and the European Commission cannot be amended when it is taken back to the plenary session of the parliament. It should be noted that Rule 69 only allows for this procedure to be followed in negotiations between the EP and the Commission, not the EP and the Council as happened in this case.

The "common text" would then be adopted - as the EP's 1st reading position - at the plenary session of the parliament on 3 May in Brussels - which is, ironically, World Press Freedom Day. The General Affairs Council could then agree the "common text" at its meeting on 14-15 May.

In their critique Statewatch, the European Federation of Journalists (EFJ), European Citizens Action Service (ECAS), European Environmental Bureau (EEB), Professor Deirdre Curtin, Utrecht University and the Standing Committee of Experts (Utrecht) and Ulf Oberg, Stockholm University say:

"We consider the "common text" on the table is quite unacceptable on two broad grounds:

i) it undermines current rights under the 1993 Decision (prior to the Solana Decision of last summer) as interpreted by the ECJ and CFI, see below

ii) it does not reflect the "spirit" of the commitment taken in the Amsterdam Treaty (Article 255, TEC) to "enshrine" the citizens' right of access to EU documents. This commitment was to ensure that at the very least the 1993 Decision, and subsequent decisions by the courts and the Ombudsman was entrenched in binding legislation , and moreover to include new rights such as the establishment of public registers of all documents with direct access on the internet (subject only to Article 4.1). These dual results were to be undertaken in the spirit of the foundational article of the European Union, Article 1, namely that: "This Treaty makes a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible". This phrase clearly indicates that the very minimum which is "possible" is the status quo. Anything less that the status quo can be considered in breach of Article 255, read in the light of Article 1.

Unless the current "compromise" draft is amended in line with the amendments/deletions set out below it is our fervent belief that attempts to agree a new code of access should be abandoned forthwith and that the Commission be invited to present a new draft proposal to meet the Amsterdam commitment.

It is our view that it is a fundamental role for the European Parliament to protect existing rights of citizens and civil society on this issue and to extend them - the current "common text" does not do this.

Rather than "enshrining" the rights of citizens it undermines the current code and "enshrines" the rights of Member States and the infamous "Solana Decision" (albeit in a different form).

The Council, in particular, has sought to use the new code to protects its own interests and now it appears the European Parliament accepts this view. Both parts of the legislature effectively agree to throw the baby out with the bath water."

Tony Bunyan, Statewatch editor, comments:

"When we saw the Council draft position of 4 April we said that: "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." Yet this is exactly what the parliament's delegation did a day later on 5 April.

Civil society is calling for the "common text", reached through secret "trilogue" talks, to be drastically amended or thrown out. On this issue the European Parliament has to decide which side it is on - the "dinosaurs" for secrecy or citizens for democracy and openness."

Statewatch News online

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