13 March 2000
Wall Street Journal Europe, 9.3.00 [edited section noted as dots ...]
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Comment: Mr Prodi starts by outlining the need for a "modern" Commission which carries public opinion with it and suggests that the proposed regulation would "widen access" to documents.
"... Let me begin by answering Mr. Söderman's charges. He states that the EU's new proposals were "secretly drafted." Not so. The question of access to documents was discussed at a conference in the European Parliament last April, at which he himself spoke, and which was attended by 200 representatives from a wide range of organizations. A discussion paper on access to documents was widely distributed, debated and criticized. The Commission took these comments into account in preparing the draft legislative proposal. Then too, these draft proposals will now be openly scrutinized by the European Parliament, which jointly with national governments acting together through the Council of Ministers will determine the final shape of the new law. So much for secrecy."
Comment: See Statewatch's critique, the Commission did not publish a discussion paper. A draft draft was handed out the this conference but was so heavily criticised it never officially saw the light of day.
"Mr. Söderman also asserts that the proposal contains "a list of exemptions from access without precedent in the modern world," and that all documents could probably be withheld from public scrutiny on legal grounds. This too is wide of the mark. The exemptions, similar to those provided for in laws covering access to documents in practically all EU countries, are as follows: the public interest, respect for privacy, commercial and industrial secrecy, and a request for confidentiality by those who submit information to the Commission.
Comment: Mr Prodi fails to mention that the existing exceptions (under the codes adopted in December 1993) have been massively widened to include: "the stability of the Community legal order" and "the deliberations and effective functioning of the institutions".
"... But I can guarantee that withholding documents would be very much the exception. Only those documents which could significantly threaten specific, clearly defined interests would be withheld from public access.
Furthermore, under the new proposals, the Commission would only be able to exclude a document if it passed a so-called "harm test" to determine if disclosure would damage legitimate interests. Release of documents is the rule, confidentiality the exception, under the new system: A document should only be withheld if it can be assumed that releasing the text would cause specified harm."
Comment: under the definition of a "document" most documents are excluded - an applicant cannot even request them. Under the exceptions the institutions would unacceptable discretion to refuse access.
"Of course there will be occasions when the Commission withholds documents. Even the Committee of Independent Experts, whose first report prompted the resignation of the former Commission last year, contends that any public institution needs "space to think" shielded from undue pressure. But this too is in line with practice in many EU countries: The UK allows documents involving the "formulation of government policy" to be exempted from its rules on public access; internal drafts may be withheld in Denmark; and in Sweden preparatory documents can sometimes fall outside the scope of rules on public access. The Commission's new code will compare favorably with many access regimes in Europe.
The new code will also improve the existing situation in three major respects: first, it will strengthen citizens' rights under the control of the European Court of Justice. Second, it will cover all documents held by EU institutions, including those held on behalf of third parties, rather than just the Commission. Third, the list of exemptions has been clarified."
Comment: the effect of defining the citizen's right of access to documents so as to give officials the so-called "space to think" means that civil society is excluded from the decision-making process - this suggests, like the unpublished discussion paper, that documents will not be released until a measure has been adopted. To cite the UK's much-criticised Freedom of Information Bill in support of his argument is not a very good idea.
".... Contrary to popular belief, the European Commission is already a very open administration. At present it hands out 90% of documents requested and there is no reason why this should change under the new law. It also publishes an almost unrivaled number of documents online. And it regularly launches white papers or holds public forums in order to spark the widest possible debate before proposing new EU laws.
Our new code is just a step on the road to greater transparency. If endorsed by Parliament and member-state governments it will give the EU a regime on access to documents that compares favourably with some of the most progressive in the world. No doubt there are further improvements to be made, and I will be unswerving in my determination to identify them and make them happen...
... European integration is a complicated business, and people often fear what they do not understand. If we want to succeed, it is entirely in our own interest to open the EU's doors as widely as possible. We've already come a long way. Restoring public confidence in the way Europe is run by implementing clear and binding rules on transparency will take us even further."
Comment: Under the Commission's proposed regulation most documents will be excluded - the citizen cannot even apply for them. The Commission currently has no register of documents and applicants are faced with identifying who to send a request to.
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