EU: Attacking the citizens’ right of access?
01 November 2004
The Regulation on access to EU documents was adopted in December 2001. It will have to be amended to cope with the new structures and legal framework under the EU Constitution. The only report on the operation of the Regulation was issued by the European Commission in 2004.
Introduction
The Commission released its report on the application of the Regulation on access to documents of the Council, Commission and European Parliament in January 2004.
This report does not suggest amending the existing legislation and does not appear to accept that the status quo entails any limits on the right of access which should be removed. Rather, it points to a number of issues on which the Commission defends the existing limits on the right of access and would like to impose even further limits. More broadly, the Commission appears to have little understanding of the context of the rules on access to documents, which were designed to address public alienation from the work of the EU, to ‘ensure the widest possibile access to documents’ and to facilitate public participation in the EU’s decision-making process (Regulation 1049/2001/EC)
Background
The Council and Commission adopted rules on access to documents in 1993 following widespread public concern about the ‘democratic deficit’ in the European Union, insufficient systems for ensuring accountability of EU bodies and the general lack of openness and transparency in EU activity. Those rules were applied highly conservatively at first, and it took constant complaints to the EU Ombudsman and the EU courts by Statewatch and others interested in access to documents to ensure that the institutions lived up to their promise of greater openness. In 2001, the rules on access to documents of the Council, Commission and EP were set out afresh in Regulation 1049/2001, which largely codified the existing principles in the 1993 rules as built up by the decisions of the Ombudsman and case law of the Courts. The Regulation also went further than the previous rules in one area, by allowing access to documents which were not ‘authored’ by the Council, Commission or EP but which were in such institutions’ possession. However, certain provisions in the Regulation still potentially permitted continued or new unjustified restrictions on access to documents.
Specific problems - Scope
As regards the scope of the Regulation, the Commission fails to observe that the European Council (the EU leaders’ summit meeting) is not bound by the Regulation or by its own access to document rules.
Also, while the Commission notes that the EU Courts have refused to adopt rules on access to documents, it fails to comment on this. Why should all documents of the Court automatically be exempt from rules on access? If it necessary to protect some Court documents from access, why is it impossible for an institution with (after enlargement) fifty experienced judges and hundreds of other legal experts to draft rules which distinguish between documents which can be disclosed and documents which cannot? The Commission (or the Council or EP) could commission an analysis of national rules on this issue to establish whether the Court’s position is at all justifiable.
The Commission’s survey of other EU institutions or agencies fails to mention that Eurojust, the EU prosecutors’ agency, still has not yet adopted rules on access to documents. Nor did the amendments to the Decision establishing Eurojust adopted in August 2003 include such rules; this was a missed opportunity for the Commission to propose such rules and the Council to adopt them.
Also, the shadowy EU Police Chiefs’ meetings are not subject to any rules on access to documents.
Specific problems - Exceptions
First of all, the Commission’s discussion of the data protection exceptions fails to mention that the EU Ombudsman’s investigation into the Commission’s position on this issue ruled again