Statewatch: Call for an Open Europe - 2012

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"Access to documents in the EU is not a "gift" from on high to be packaged, sanitised and manipulated. It is a "right" which is fundamental in a democracy": Tony Bunyan, Deirdre Curtin and Aidan White in Essays for an Open Europe

That was in 2000, now in 2012 the right of access to EU documents is under great threat again

To Sign up for the "Call for an Open Europe":please send an e-mail to: giving the name of your organisation with "CALL" in the subject line and we will keep you in touch with all the developments

EU: REGULATION ON ACCESS TO DOCUMENTS: Council of the European Union: Latest draft Council position to be discussed in the Working Party on Information on Friday 8 June (dated 4 June 2012, pdf) Statewatch analysis of this latest draft of the Access to Documents Regulation by Steve Peers, Professor of Law, Law School, University of Essex. He concludes that the latest draft would result in a VERY SIGNIFICANT drop in standards as compared to the status quo, and that under no circumstances should the EP agree with this text as it stands.

EU: Statewatch Analysis: Access to EU documents: Article-by-Article commentary, ‘Red Lines’ for the negotiations, and the undemocratic recast procedure (pdf) by Steve Peers, Professor of Law, Law School, University of Essex.

On 10 May 2012, the Danish Presidency of the Council put on the agenda of Coreper (the EU body consisting of Member States' representatives to the EU) a draft deal on the proposed Regulation on access to documents. This deal, if agreed, would constitute the Council's position for negotiations with the European Parliament (EP), which has joint decision-making powers on this proposal. This analysis examines the draft deal on an article-by-article basis and concludes:

- The draft position of the Council constitutes a significant overall reduction in the level of access to documents.

- In particular, the council's definition of a 'document' is of doubtful legality and would exclude massive numbers of documents from the scope of the rules.

- The EP should not accept the Council proposal in its present form, or any variation thereof which would significantly reduce current standards.

- In particular, the EP should make clear to the Council that it cannot in any circumstances accept the proposed definition of a 'document'. If the Council is adamant on including this definition, the EP should instantly veto the proposal.

- The Commission's decision to present negotiations in the form of a 'recast' - a profoundly undemocratic and indeed surely illegal procedure - has prevented the EP from pressing for most of the changes it has unanimously voted for.

- The EP and the Council should immediately denounce the pernicious and illegal Inter-institutional Agreement on the recasting of EU Acts.

EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Council seeks to re-write the definition of a "document" after 19 years: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (first reading) - Preparation of informal trilogues (pdf). Since 1993 the definition of a "document" has been that a: "document shall mean any content whatever its medium" and this is in the current Regulation. However, the Council intends to keep this general definition (Article 3) but to add Article 3a: "Documents subject to this Regulation": which says a document becomes subject to this Regulation (ie: the whole Regulation) when: "it has been drawn up by an institution and either formally transmitted to one or more recipients, submitted for filing or registration, approved by the competent official, or otherwise completed for the purposes for which it was intended" (emphasis added) In simple terms a "document" is only really a "document" when it is finalised (all the drafts and discussion prior to this are not "documents") - this is the same definition, which was widely criticised, first put forward by the Commission in 2008. .

The double-faced language of the Council position means also that while it appears in Article 12 that documents concerning legislative and non-legislative acts: "shall, subject to Articles 4 and 9, be made directly accessible to the public" they are still subject to the general rule in Article 3a above. It would thus negate Articles 15.1 and 15.3 para 5 of the Lisbon Treaty.

Tony Bunyan, Statewatch Director, comments:

" In 1997 the Amsterdam Treaty promised to "enshrine" the public's right of access to EU documents but in 2001 we only got half the cake. If the Council and the Commission get their way we will be left with just a few crumbs [small fragments]. Access to documents is the life-blood of a healthy, vibrant, democracy which encourages informed consent and dissent. Instead the Council wants an unaccountable democracy bereft of content and meaning."

EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Statewatch challenges Council secrecy on access to EU documents on the revision of the Regulation: Letter from the Council refusing access to three documents concerning the Council's discussions on revising the Regulation on access to EU documents (pdf) in response a: Confirmatory application by Tony Bunyan, on behalf of Statewatch (pdf)

The Council had hidden three crucial documents and claimed that access could not be given because 1) It would "prejudice Council's capacity to conduct frank and candid discussions". In other words to meet in secret as a legislature under the so-called "space to think" (under Article 4.3 of the Regulation on acces to documents) see: The case for the repeal of Article 4.3 2) The Council then claims that there was an "absence of any element suggesting an overriding public interest" in dislcosure - it is hard to think of an issue on which the public's right to know what is being discussed manifestly outweighs the need for secrecy. 3) The Council concludes by saying that access may to given "after the the final adoption of the act" - subject still to Article 4.3 para 2.

Tony Bunyan, Statewatch Director, comments:

"The notion that the wish of a legislature to meet in secret (by failing to release the documents being discussed) outweighs the public interest of the citizens on such a fundamental issue, namely the right to know what is being discussed and proposed in a legislative process in order to know and allow for public debate, has no place in a democracy worthy of the name."

Statewatch has been working on access to EU documents since 1992 and has lodged ten successful complaints against the Council of the European Union (the EU governments) and the European Commission. Statewatch maintain extensive background information on a series of Observatories:

- Observatory: the Regulation on access to EU documents: 2008-ongoing (All the latest News and documents on the current negotiations on the revision of the Regulation
- FOI in the EU - with all the developments
- Secret Europe - reporting on secrecy and openness in the EU (historical archive)
- Observatory on public access to EU documents: on the struggles between 1999-2001
- Key texts
- Analyses and critiques

To Sign up for the "Call for an Open Europe":please send an e-mail to: giving the name of your organisation with "CALL" in the subject line and we will keep you in touch with all the developments

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