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Access Regulation: EEB: MORE TRANSPARENCY OR MORE RESTRICTED ACCESS TO DOCUMENTS - WHAT WILL WE GET?

28 March 2012

From Metamorphosis Newsletter of the European Environmental Bureau, February 2009

Better access to information, transparency in governance and public participation are fundamental rights ensuring that citizens can participate effectively in the political process. These principles have always been at the heart of EEB’s objectives and work.

The 2001 Regulation[1] on access to documents held by the EU institutions was an important step
forward for transparency at the EU level. Currently this Regulation is being reviewed on the basis of a set of proposals put forward by the European Commission. Despite EU Commissioner Wallström presenting the revision proposal with the words “Access to documents is an essential tool for democracy and now we want to improve it,” EEB, along with other civil society organisations and certain EU officials, is worried that the proposals may represent a step backwards rather than an improvement.

EEB welcomes certain proposals, including bringing the Regulation in line with broader provisions for access to environmental documents as required under the Aarhus Convention[2] to which the EU is a Party. It also supports the
amendment to make EU documents available to non-citizens and non-residents of the EU. EEB is alarmed, however, that several of the other Commission proposals will restrict access to documents more than before and slow down the
process of receiving them. Most worrying is the proposal to change the definition of “document”. According to the new definition an institution’s document is only considered a ‘document’ subject to access provisions once it has been “formally transmitted to one or more recipients or otherwise registered”. So documents without official status, or
not formally sent from one civil servant or unit to another, would fall out of the scope of the Regulation. In this way the Commission can withhold essential pieces of information needed to understand how the Commission works and how it comes to decisions.

Furthermore, entire categories of documents would be excluded from the scope of the proposed ‘transparency rules’. This concerns documents submitted to courts and those informing investigations by EU institutions, which will likely lead to an increase in refused access to documents during infringement procedures initiated by civil society groups regarding breach of environmental laws. More than a quarter of the cases the Ombudsman3 dealt with in 2007 concerned lack of transparency.

EEB is particularly upset that in spite the Commission’s rethoric, there is no improvement in sight on these issues. Excluding such documents from the scope of the regulation is unacceptable and goes against recent case law and recommendations made by the Ombudsman. In a democracy access to information should be the guiding principle and exceptions only granted in special cases.

EEB has complained to the Ombudsman, which supported our assertion that the Commission should have given us documents it used to approve the construction of a new harbour on Tenerife in a nature area. In this case, as is frequently true, the Ombudsman’s conclusions are not being followed by the Commission. Therefore, EEB supports giving the Ombudsman greater powers and making their advice binding.

A Parliamentary vote has been scheduled for March and EEB is calling on Parliament to do everything it can to grant citizens better access to documents; we hope they consider that supporting citizens’ rights is in Parliament’s interests in in election year. The proposal is likely to go to Ministerial level in the second half of this year during the Swedish EU Presidency. Sweden is known for transparency in government so we are counting on the Swedish Presidency to prevent a roll back of openness and transparency.

By Regina Schneider, EEB Head of Communications

[1] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 - Regarding Public Access to European Parliament, Council and Commission Documents (OJ L 145, 31.5.2001)

[2] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters