28 March 2012
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This latest draft (document
1397/12, 4 June 2012) is clearly based on the 'technical
draft' of the regulation released recently, with certain changes.
The following are the changes from the technical draft, with comments:
1) There is a new Article 3b, instead of a new Article 4.6a in the technical draft. This is based on Art. 5a(1) of the European Parliament's (EP's) proposed amendments. While this text would improve the status quo, it would be inferior to the proposed Article 4.6a in the technical draft, because a) it does not apply to all quasi-legislative procedures, but only where the institutions act under 'delegated powers' (not defined); this could be interpreted as a reference to the adoption of delegated acts by the Commission only, and not to the adoption of implementing acts or other non-legislative acts of general application by the Commission or Council; b) it is less clear what the practical consequences are.
In the EP draft as a whole, these weaknesses were not very important because Article 4(7) of the EP draft would have abolished the decision-making exception entirely as regards procedures to adopt a much more clearly defined category of legislative and non-legislative acts of general application. At the very least, Article 3b should take on board this definition of its scope from the EP draft of Article 4(7): 'documents transmitted within the framework of procedures leading to a legislative act or delegated or implementing act of general application.'
2) Article 4.1.b is now amended by using the Commission text from Article 4(5) of its 2008 proposal, rather than (in the technical draft) using the EP's text. While this version of the amendment would still improve the status quo (in light of the poor judgment of the ECJ in the Bavarian Lager II case), the EP's text is preferable because it is broader, referring not just to names but to professional activities of a person and to data concerning public persons.
3) There are some changes to the structure of the proposal relating to the presumptions:
- Article 4a.2 in the technical draft is now Article 4.3b(a);
- Article 4a.1 in the technical draft is now Article 4.3b(c); it has been amended compared to the technical draft (see below);
- Article 4a.3 in the technical draft is now Article 4.3b(d);
- Article 4a.4 in the technical draft is now Article 4.3b(e); it has also been amended compared to the technical draft (see below); and
- Article 4a.5 in the technical draft is now Article 4.3b(f).
Furthermore, Article 4.3b(b) re-inters the presumption relating to legal advice, which was expressly dropped from the technical draft. Unlike most of the other provisions of the draft Article 4.3b, this clause does NOT reflect the status quo as interpreted by the Court of Justice, but rather seeks to OVERTURN the case law of the Court - in particular the Turco judgment of the Court of Justice, but also the recent In't Veld judgment of the General Court (which the Council is about to appeal to the Court of Justice). This part of Article 4.3b would therefore obviously lower standards as compared to the status quo.
As for the other changes since the technical draft: a) Article 4.3b(c), which concerns investigations, et al, is extended in scope to include criminal proceedings (this broadly reflects the status quo in the case law) and the second sub-para is amended to provide for a presumption rather than a total exclusion of documents. This improves standards as compared to the technical draft (and is not as legally dubious as a complete exclusion) but still reduces standards as compared to the status quo, in particular because it provides for the presumption to continue even after the decision, etc has been taken. b) Article 4.3b(e) has been amended to raise the threshold which the applicant for documents would have to satisfy to overturn the presumption (adding the word 'clearly') and to specify that overturning the presumption does not simply mean that the document will be released, but only that an individual examination would have to be carried out. Both changes lower standards as compared to the technical draft and arguably also the status quo.
If Article 4.3b(c) is to be included in the text, the recitals in the preamble must make clear that even if the institutions in such circumstances might legitimately refuse to release the relevant documents to the public, those institutions could be required nevertheless, pursuant to other rules of EU law, to release the documents concerned to the persons under investigation, in order to ensure their right to defence (cf the Sison cases).
4) Article 4(5) - this differs from the technical document because a sentence has been dropped, providing for a Member State to refer to its national law as regards the application of a particular exception. The case law already permits Member States to do this, so dropping an express reference to this possibility probably would not change the status quo.
5) Article 12 - this differs from the technical document because a) the inter-institutional website is now a portal; b) it is referred to in para 2 instead of para 1, so does not apply to documents as a whole, but only to documents concerning legislative or quasi-legislative procedures; c) the categories of documents to be included are amended to drop any reference to Member State representatives in Council bodies, and to shorten the references to preparatory documents (dropping the references to legal advice and to consultation and impact assessment information) and documents produced during decision-making (dropping the references to legal advice, working party papers including MS positions, EP committee documents, compromise proposals and trilogue documents); d) there is a new 12.2a, requiring institutions to make references to their preparatory documents in legislative procedures on this portal; and d) 12.3a in the technical draft has been dropped; this required the institutions to provide information on the different stages of the procedures.
Taken as a whole, the changes to Article 12 would lower standards as compared to the technical draft, in particular because the specific references to legal advice and all of the key documents produced in legislative procedures have been dropped. Also, the obligation to make documents available in Article 12.2 is limited by reference to Article 4 - so the lowering of standards in Article 4 as compared to the technical draft would also entail a lowering of standards as regards Article 12.2 as a knock-on effect.
The technical draft would, on the whole, have increased standards modestly as compared to the status quo, EXCEPT FOR the (illegal) exclusion of large categories of preparatory documents pursuant to Article 3a, which would have undercut all of the increases in standards and resulted in a significant drop in standards overall.
Compared to the technical draft, this latest draft sets significantly lower standards as regards Articles 3b and 4.3b and lower standards as regards Article 4.1(b) and 12. It does not really change the position as regards Article 4.5. It would therefore, even leaving aside Article 3a, LOWER standards as compared to the status quo, in particular due to the overturning of the Turco judgment. Including the effect of Article 3a, the latest draft would result in a VERY SIGNIFICANT drop in standards as compared to the status quo.
It should go without saying that under no circumstances should the EP agree with this text as it stands.
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