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Code of access to EU documents: "Trilogue" starts again

28 March 2012

The "trilogue" meetings between the Council of the European Union, the European Commission and the European Parliament to try and sort out their substantial differences on a new code of access to EU documents are to start again next Wednesday (7 March).

The first series of three "trilogue" meetings in January and February ended with minor changes in the Council's draft common position and more substantial changes in the European Parliament's position.

Now civil society groups says that all three draft new codes on offer from the Council, Commission and European Parliament, are a "step backward" from the existing code of access in place since 1993. A "compromise" between three "bad" draft codes, they argue, will lead to a "bad" code.

They says that either the institutions should wipe the slate clean and start again or adopt the present code to meet the commitment in the Amsterdam Treaty (Article 255). The so-called "trilogue" talks have no explicit basis, lack transparency, any rules and representivity. If neither of these options is taken then the demand is that the formal co-decision process should start immediately - then at least there would be a proper process with deadlines and a degree of transparency.

It should be noted that the European Parliament and the Council even spell the word differently! European Parliament talks of "trilogue" talks and the Council of "trialogue" talks.

European Parliament report

The European Parliament's position is the most confusing. The parliament adopted a report on a new code of access to EU documents at its plenary session on 16 November 2000. It did not pass an associated legislative resolution which would have made the report its 1st reading position. The leading rapporteurs, Michael Cashman PSE and Hanji Maij-Weggen PPE, argued that this allowed for negotiations to take place with the Council and Commission.

During the "trilogue" talks a "compromise" European Parliament report was submitted which was different on a number of points from the original. Then after the first series of "trilogue" talks ended in failure a new, different, report was put on the agenda of the Committee of Citizens' Freedoms and Rights on 26 February. But at the meeting instead of agreeing deadlines for the submission of amendments the Committee was told this was not going to happen as new "trilogue" talks were now planned.

To date there have been three versions of the parliament's report.

Latest Cashman/Maij-Weggen (PSE/PPE) report (Word 97) Revised critique (12.3.01) of this "compromise" report: Critique

Graham Watson's letter

During the first series of "trilogues" Graham Watson, Chair of the Citizens' Freedoms and Rights Committee, wrote to the Council and the Commission highlighting three main areas of disagreement.

First the "status quo", Watson writes:

"the Parliament considers that the new Regulation cannot in any case be a step backwards from the current situation as interpreted by the European Court of Justice. In particular, this means that documents should not be defined in a more restrictive manner."

On the "space to think", he writes:

"under the current rules of all three institutions internal or preparatory documents are not excluded and therefore a more restrictive definition of documents is effectively a step backwards, and could not be accepted by the Parliament."

On the so-called "authorship" rule, he writes:

"the Parliament cannot accept as a general principle the so-called "authorship rule" under which the consent of the third party will be required before documents of third parties can be disclosed."

The commitment that the new code of access to EU documents must not be a "step backwards" is most welcome. Unfortunately all the drafts on the table, including that from the European Parliament, remove existing rights under the 1993 code.

Full-text of Watson letter (pdf)

Civil society demands

At a working seminar held in the European Parliament on 27 February civil society groups told representatives of the Council, the Commission and the European Parliament that:

1. None of the drafts on the table maintained existing rights under the 1993 code of access.

2. A "compromise" between three draft positions, all of which undermine existing rights, was unacceptable.

3. The deadline of 1 May under the Amsterdam Treaty was irrelevant.

4. The "trilogue" process was unacceptable, it is not transparent, is being carried out in secret and in a way that is impossible for the citizen and civil society to follow. In the view of some, it had no legal basis.

5. The three institutions should either start again or immediately instigated the co-decision procedure (which would ensure a degree of transparency and set clear deadlines).

6. An "Open Letter" expressing the views of civil society would be drawn up.

The seminar was organised by the European Federation of Journalists and Statewatch.

A draft code which maintained existing rights of access and extended them in the light of practice since 1993 was circulated at the meeting: "Our code": a code for civil society on access to EU documents

So too was an article by Tony Bunyan, Statewatch editor setting out the arguments: European Voice article