11 July 2000
Overall the "Explanatory statement" shows an intent which is better than the actual detailed proposals in the report.
"the proposed Commission regulation implementing Article 255... only confirms the existing situation as defined in the Council/Commission code of conduct... before entry into force of the Amsterdam Treaty... the five years experience of the functioning of the code of conduct (which shows that access to documents is more of a reality for lobbyists in Brussels than for European citizens)..."
The Commission proposed regulation does not confirm the existing situation, it is a major step backwards from the present practice. The current Council Decision and Code of Conduct for the Commission was adopted in December 1993. The statement that access is a "reality" for lobbyists and not for citizens reflects the Commission's "spin" and is not true of access to Council documents.
The "Explanatory statement" does not seem to understand the present practice.
Everyone would agree with the statement that:
"all documents should be accessible and exceptions to the right should be limited as far as possible"
iii) It seeks to exempt, under six different provisions, the European Parliament from any restrictions on its access to documents. As argued in Statewatch's proposed amendments to this report such proposals cannot be introduced under Article 255 of the Treaty on the European Communities as agreed under the Amsterdam Treaty and would probably be challenged in the courts as being unlawful.
"Although there should be "space to think" internal documents should not be excluded from the scope of this Regulation"
The report thus grants the Commission its "space to think" for officials but then seeks to create a distinction, in the Explanatory report, between:
"informal documents, such as personal correspondence which can be excluded from the scope of the Regulation and internal documents which must not be excluded"
Is it really being suggested that the meaning of:
"personal correspondence" (Explanatory report, Part 2))
is the same as:
""document" shall not mean informal information in the form of written messages which serves the provision of personal opinion or the free exchange of ideas ("brainstorming") within the institutions." (Final report, A5-0318/2000, part 1)
Where is the line to be defined between:
Who will decide?
As formulated by Cashman-Weggen the distinction is unclear and imprecise and therefore open to abuse (hiding whole categories of documents).
This provision gives "third parties" rights which are inappropriate in a measure concerning the rights of EU citizens.
Within the framework of the Council of the European Union new measures/initiatives are increasingly being put forward by EU Member States - it would be quite wrong for Member States to exercise additional powers to those they have as member of the Council itself.
Moreover, the "Justification" in the main report correctly states that the final decision to release a document from an EU Member State or third parties must rest with the EU institution, Amendment 36 does not give effect to this principle and needs to be changed (see Statewatch amendments).
vii) At present documents may be reproduced except for commercial purposes without permission. That is to say, documents concerning public policy and practice can be reproduced so that civil society can find out what is being discussed. The Commission has proposed that documents cannot be reproduced for "any other economic purpose".
The Cashman-Maij Weggen report proposes to delete this provision (which is a positive move) and to replace it with the right to reproduce subject to EU, international and national laws on intellectual property. However, there is no explanation of the effect of this in the report or Explanatory report and their proposal fails to distinguish between documents produced by "public bodies" (such as the Council, Commission and European Parliament) which should always be in the public domain and documents produced by a "private entity" which should be protected by these laws.
Overall the Cashman-Maij Weggen report is confused. There are some very good provisions (see point 3 above) but the inclusion of interinstitutional agreements lead to the conclusion that there are more new "rights" for the institutions than for the citizen. In addition there are a number of proposal which are potentially more restrictive and it is interesting that the new report from the Council Presidency is seeking to develop these.
Spotted an error? If you've spotted a problem with this page, just click once to let us know.
Statewatch does not have a corporate view, nor does it seek to create one, the views expressed are those of the author. Statewatch is not responsible for the content of external websites and inclusion of a link does not constitute an endorsement. Registered UK charity number: 1154784. Registered UK company number: 08480724. Registered company name: The Libertarian Research & Education Trust. Registered office: c/o MDR, 88 Fleet Street, London EC4Y 1DH, UK. © Statewatch ISSN 1756-851X. Personal usage as private individuals "fair dealing" is allowed. We also welcome links to material on our site. Usage by those working for organisations is allowed only if the organisation holds an appropriate licence from the relevant reprographic rights organisation (eg: Copyright Licensing Agency in the UK) with such usage being subject to the terms and conditions of that licence and to local copyright law.