EU: Regulation on public access
01 January 2000
The European Comission has finally adopted its proposal for a regulation on public access to documents - by redefining what is a "document" it threatens to completely undermine existing practices
When the Amsterdam Treaty was signed by the EU governments in June 1997 the Treaty contained what was widely understood to mean a real commitment to "enshrine" openness (access to documents). Article 255 of the Treaty said:
"Any citizen of the Union.. shall have a right of access to European Parliament, Council and Commission documents.."
This commitment in the Treaty, plus the new right of citizens to put complaints to the European Ombudsman on access to documents covering justice and home affairs, followed a series of complaints to the Ombudsman (Statewatch and Steve Peers) and cases in the Court of First Instance (John Carvel/Guardian, the Swedish Journalists Union and Heidi Hautala MEP) in Luxembourg. Prior to the Amsterdam Treaty the Council (the 15 EU governments) had literally been split in two over the issue of access to documents.
The current codes of access adopted in December 1993 have been refined in practice and the discretion available to the institutions to refuse access limited by the decisions of the Court and the Ombudsman. A modus vivendi has in effect been established.
The test for any new code of access is: would it maintain and improve on the existing situation? Or would the "dinosaurs" (as Mr Söderman, the European Ombudsman described the forces for secrecy) use this opportunity to undermine the gains made?
Under the Amsterdam Treaty the European Commission was charged with drawing up a measure to put Article 255 into effect which has to be adopted under the co-decision procedure by the Commission, the Council and the European Parliament. The Commission was necessarily not the best of the institutions to draw up the new measure. It was, after all, the Commission that passed as an "A" Point (without debate) in 1992 a code on access which would have introduced a draconian UK-style official secrets act - this was later withdrawn.
Undermining the Amsterdam commitment
The Amsterdam Treaty stipulates that the new measure on access has to be agreed within two years of the Treaty coming into effect, that is by May 2001.
The Secretary-Generals of the three institutions agreed in December 1997 to set up an informal working party under the Commission's Secretariat-General. Over a year later there was a draft discussion paper (dated 22.1.99, leaked to Statewatch) and a revised draft (dated 23.4.99). The draft discussion paper was circulated at a conference held in the European Parliament on 26 April 1999 and was roundly criticised by MEPs, NGOs, lawyers and journalists. The central criticism was that it sought to exclude most documents from access (see Statewatch vol 9 no 2).
In June 1999 the Commission decided not to publish a discussion but to proceed straight to the adoption of a regulation by the Commission. The decision not to put out a discussion paper after two years since June 1997 on such a major Treaty commitment was quite extraordinary. By this move civil society had no formal means to make its views known and was exclude from the process.
The incoming Finnish Presidency made its views known - they would not take kindly to a discussion paper, like the "unofficial" draft in circulation, being put out and they wanted a deadline for the proposed measure. The Commission, mindful that the Finnish Presidency had made openness and access one of its objectives did not even circulate a draft regulation inside the Commission until the end of November.
Draft regulation leaked
At the beginning of December a copy of the November draft of the regulation was leaked to Statewatch. It was translated and put out on the internet with a press release on 9 December. Hundreds visited the Statewatch site including EU governments and NGOs. Before Chris