French Presidency bequeathes Sweden a "poisoned chalice"

At the meeting of COREPER (the body comprising the permanent representatives of the 15 EU governments in Brussels) on 18 December the French Presidency of the EU presented its final draft of the Council's draft common position on access to EU documents: Full-text (pdf)(draft dated 22.12.00). The dilemna for the new Swedish Presidency (from 1.1.01) is how far it can reverse the current "consensus" among the EU member states and meet its own commitment to meaningful freedom of information.

Each new version of the Council's draft common position under the French Presidency is worse than the previous one, and the 18 December version is no exception: 1. It would remove rights of access to EU documents under national freedom of information laws and centralise decisions in Brussels. 2. EU institutions would have the discretion to refuse access to documents until adopted. 3. EU member states would have a veto over access to documents submitted.

It is understood that as a result of the meeting of COREPER on 18 December 2000 a number of issues are still to be resolved by the Council: i) the referral of applications for EU documents at national level to the EU institution concerned (see point 3. below) has not been agreed yet; ii) the issue of "third parties" (point 2. below) has been referred back to the Working Party on Information with the remark that the European Parliament is unlikely to accept the proposal; iii) the registers of documents (see point 5. below) will not include references to "sensitive documents"; and iv) it was confirmed that "sensitive documents" would not just cover defence and foreign policy but all policy areas including justice and home affairs.

The changes from the version of 1.12.00 are as follows:

1. Under Article 4, "Exceptions" (grounds on which access to a document may be refused), Article 4.2 has been completely changed. The version of 1.12.00 said:

"4.2. Access to a document may be denied if its disclosure could seriously undermine the effectiveness of the institution's decision-making process, unless it is clearly in the public interest to disclose the document."

The 18.12.00 version says:

"Access to a document which relates to matter where the decision has not been taken by the institutions, may be denied if its disclosure could seriously undermine [the effectiveness of] the institution's decision-making process, unless it is clearly in the public interest to disclose the document."

The new wording is reminiscent of the European Commission's unpublished discussion paper which said that the premature release of documents before a decision has been taken could require:

"an embargo [which] could be imposed.. to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of a document from giving rise to "misunderstandings" or jeopardising the interest of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision.."

Discussion paper on public access to Commission documents, 23 April 1999 and summarising the discussions held between "officials" from the European Parliament, Council and Commission

There are few more undemocratic ideas than the one that civil society should be denied access to documents until after a decision has been taken.

2. There are now two options on the table concerning documents from "third parties". The 1.12.00 version said:

"4.3. Access to a document provided by a Member State shall be refused if the Member State asks the document not to be disclosed without its prior consent.

Access shall also be refused to sensitive documents if their originator has not given its consent.

In cases not covered by subparagraphs 1 and 2 above, the institution shall consult the third party unless it is clear that the d


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