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"OPEN LETTER from civil society on the new code of access to documents of the EU institutions" (2.5.01)

01 May 2001

"We call on the European Parliament to reject the proposed "deal" offered by the Council of the European Union on the new code of access to EU documents.

We believe this proposal weakens current rights of citizens, it does not fulfil the Amsterdam Treaty commitment to further the cause of open government and ignores important requirements of the Aarhus Convention on access to environmental information (which the Community and all its Member States have signed). It has been drawn up without proper consultation with civil society groups.

Moreover it has been adopted as a result of "trilogue" negotiations with the Council (and the European Commission) which have taken place behind closed doors for over five months. At no stage has a full, open, debate in the parliament taken place on the various substantive issues proposed. We believe that the procedure followed is not only inappropriate given the nature of the topic in question, citizens access to information, but also substantially weakens the nature and purpose of the co-decision procedure as such and parliament's function in that respect.

We ask you not to adopt this approach, but to maintain current rights and insist on a new round of discussions based upon a reaffirmation of the principles of transparency set out in the Amsterdam treaty.

Our criticisms of the "deal" now presented to the Parliament are as follows:

1. It reduces citizens' rights under the 1993 Decision (prior to the "Solana Decision" of last summer) as interpreted by the ECJ and CFI. We have detailed chapter and verse of the specific ways in which the current situation has been worsened, for example, with regard to the institutions "space to think", with regard to the pre-emption of institutions classifications systems over the citizens' right of access to information on decision-making processes with regard to "third parties" (including EU member states) being able to deny citizens access to documents submitted to EU decision-making and with regard to the supremacy of this new draft Regulation over existing national freedom of information legislation in the various member states (see Footnote below).

2. It does not meet the commitment taken in the Amsterdam Treaty (Article 255,TEC) to "enshrine" the citizens' right of access to EU documents. This commitment was to ensure that at the very least the 1993 Decision, and subsequent decisions by the courts and the Ombudsman are entrenched in binding legislation, and moreover to include new rights such as the establishment of public registers of all documents with direct access on the internet (subject only to Article 4.1 of the draft Regulation).

The new code was intended to be drawn up in the spirit of the foundational article of the European Union, Article 1, namely that: "This Treaty makes a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible". This clearly indicates that the very minimum which is "possible" is the status quo. Anything less that the status quo can be considered in breach of Article 255, read in the light of Article 1.

3. The proposal further undermines democratic standards by seeking to exclude from public access, for example, documents defined as "sensitive documents" covering not just foreign and military policy but also ones concerning public security, immigration, legal measures trade and aid - and any non-classified documents which refers to them. The proposal would give EU member states, and other "third parties" like NATO, a right to "veto" access to documents submitted to EU institutions.

4. The proposal disregards the Aarhus Convention's requirements by limiting the right of access to EU citizens and residents; by phrasing exceptions in mandatory instead of discretionary terms; by failing to require reasons for refusal in all cases; and by other shortcomings.

5. Finally, we are appalled about the way in which this "deal"<