Amending the Regulation on public access to EU documents - the state of play - an "institutional impasse"


The question is how did the "institutional impasse" come about?

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The European Commission put forward proposals to amend Regulation 1049/2001 on 30 April 2008: Proposed amendments: Explanatory Memorandum and Annotated text (pdf) and Statewatch Analysis June 2008. The Regulation 1049/2001/EC Regulation 1049/2001/EC (pdf).

On 11 March 2009 the European Parliament agreed its position but did not formally adopt it as its 1st reading position: Resolution on Commission proposals as adopted on 11 March 2009 (Rapporteur: Michael Cashman MEP, pdf). However, the parliament did not formally adopt its report as its 1st reading position. The parliament rejected the proposed definition of a "document" and put forward amendments to the Commission's proposals as well as new amendments over which it hopes to negotiate with the Commission.

Even before the parliament's decision of 11 March 2009 The Council's Legal Service advised it to reject the European Parliament's position. The released version of the Council's Legal Service is massively censored containing no information on the issues: Opinion of the Legal Service (dated 17 February 2009, pdf). However, the substantive point in the Council Legal Service's Opinion was clearly stated in Council document no: 7791/09 (20 March 2009, pdf). The Council Legal Service argued that the EP could amend the Commission proposals but could not introduce new amendments of its own - this rejecting 27 EP amendments. The Opinion of the Legal Service of the European Parliament's (EP): Opinion on the EPs' amendments (issued in 14 April 2009) took on, and rejected, the arguments used by the Council Legal Service.

In December 2009 European Parliament discussed the Regulation again: Access to EU documents: urgent update of rules needed (Press release, pdf) and Full-text of Resolution (pdf). The Resolution was tabled by the S&D, ALDE, Greens/EFA, ECR and GUE/NGL groups and adopted by 341 votes to 206, with 20 abstentions. Greens/EFA Shadow Rapporteur, Heidi Hautala MEP said: "if the Council and the Commission do not budge from their positions, Parliament should reject the whole proposal".

In January 2010 the Commission issued its: Explanatory note from the Commission (pdf) stating:

"If... it appears that the legislative procedure for the adoption of the Commission's recast proposal cannot be concluded within a reasonable time frame, the Commission will consider the possibility to submit a limited proposal amending the current Regulation (EC) No 1049/2001 only with regard to the changes introduced by Article 15(3) of the Treaty on the Functioning of the European Union."

The European Parliament returned to the issue on 22 March 2010: Draft report on amending the Regulation (pdf): Statewatch Comments on this draft (pdf) and on 12 May 2010: Draft EP report (Rapporteur: Michael Cashman MEP)

Since mid-2009 the Council Working Party has spent no time discussing its draft position - apart from verbal report back from the Council Presidency it has not considered the Commission proposals or the parliament's position. The Commission stated that it could not consider the parliament amendments until they were adopted as a 1st reading position - which the parliament refused to do because of the Council's position rejecting out of hand a swathe of its amendments. Hence the "institutional impasse" which has lasted from mid-2009 until the present.

Tony Bunyan

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