• Home /
• News /
• 2011 /
• May /
• Statewatch News Online: EU Regulation on access to documents: impasse ended

Statewatch News Online: EU Regulation on access to documents: impasse ended

28 March 2012

EU
European Parliament to revisit the definition of a "document" and adopt its report on the changes to Regulation on access to EU documents  

- "the definition of 'document' is an issue of primary law, ie the interpretation of the Treaty by the Court of Justice - it is not open to the institutions to define it in a way which limits the correct interpretation and application of the Treaty. In other words the rules on access to documents must apply to all 'documents' as defined by the Treaty - they cannot exclude entirely from their scope anything which is a document as defined by the Treaty." (Professor Steve Peers)

- "If the price of getting discussions on the Regulation moving is to limit or restrict the current definition of a "document", which has been in place since 1993, then it is far too high a price to pay. The definition is the bedrock of the right of access and of EU accountability." (Tony Bunyan)

- Reject any changes to the definition of a "document", abolish the "space to think" in Article 4.3 of the Regulation (ie: to refuse access to EU documents under discussion) and no secret "trilogues"

---

The political party groups in the European Parliament have unanimously agreed to adopt its draft Report (12.5.10) on the Commission proposals (30.3.08) to amend the Regulation (1049/2001) on public access to documents as its 1st reading position. This move will break the "institutional impasse" which has been in place since 2009.

The question of the definition of a "document" is to be re-opened

The unanimity that made this move possible was dependent on getting the backing of the largest party in the parliament, the right-wing EPP (European People's Party) who agreed providing the question of the definition of a "document" is re-opened before the 1st reading position is adopted. The European Commission (which is now dominated by EPP Commissioners) has proposed that the definition of a "document" is restricted to cover only the final version of a document which is "formally transmitted" (and would exclude documents concerning prior so-called "internal discussions"). In other words, citizens and civil society would never see which ideas are accepted or rejected or who proposed or opposed what - totally undermining democratic accountability.

The 1993 Code of Access to Council and Commission documents put into effect a Declaration in the Maastricht Treaty (1991), and it said a:

""Document" means any written text, whatever its medium, which contains existing data and is held by the Council or the Commission."

The current 2001 Regulation says in Article 3.a:

"(a) ‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility"

But the Commission want to change it to:

"«document» means any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution"

Professor Steve Peers, University of Essex, comments:

"the definition of 'document' is an issue of primary law, ie the interpretation of the Treaty by the Court of Justice - it is not open to the institutions to define it in a way which limits the correct interpretation and application of the Treaty. In other words the rules on access to documents must apply to all 'documents' as defined by the Treaty - they cannot exclude entirely from their scope anything which is a document as defined by the Treaty."

The Treaty lays down that there is a general right of access to documents, any document, whatever its medium and that any restrictions on this right have to fall within Article 4 (Exceptions) not by changing the definition of a document. For example, there cannot be a special rule removing security-related documents (the "Solana coup" in 1999) entirely from the rules, or removing entirely some other categories of documents as the 2008 Commission proposal suggests.

The "state of play" on amending the Regulation

The Commission proposals (30.3.08) found very few friends and not just on the proposal to change the definition of a "document", see Statewatch's Analysis: article-by-article commentary These include: a) Article 2(6), second sentence (indefinite refusal of access to corporate documents); b) Article 3(a) (definition of ‘document’); c) Article 4(5) (personal data); d) Article 5(2) (Member States’ documents); and e) Article 12 (registers of documents).

The European Parliament's draft Report (12.5.10) contains many good proposals which deserve to be supported. However, there a number of amendments which are still needed, see Statewatch Analysis of preceding draft 22.3.10 and EP draft report 22.3.10

As to the Council the substantive points in the Council Legal Service's Opinion are clearly stated in Council document no: 7791/09 (20 March 2009, pdf). The Council Legal Service argued that the EP could amend the Commission proposals but could not introduce new amendments of its own - this rejecting 27 EP amendments. The Opinion of the Legal Service of the European Parliament's (EP): Opinion on the EPs' amendments (issued in 14 April 2009) took on, and rejected, the arguments used by the Council Legal Service.

The Council's refusal to consider the 27 EP amendments led the parliament refusing to adopt its 1st reading position so discussions with the Council could not start. Thus was the "institutional impasse" created.

Overview: The "State of Play" on amending Regulation 1049/2001 on public access to EU documents - three column chart showing the Regulation, Commission proposals and European Parliament's draft report.

Abolish the "space to think" The Commission's new proposal - 2011

In March the Commission put forward a further proposal to "Lisbonise" the Regulation: Full-text of amendment (pdf) which is limited to extending the Regulation to EU bodies and agencies and failed to "Lisbonise" it.

See: Statewatch's critical Analysis: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments The "space to think": Article 4.3 of the Regulation is used to deny access to documents concerning measures "under discussion" because it could "seriously undermine the decision-making process". On the contrary Article 4.3 "seriously undermines" democracy because the public and civil society have no right to know what is being discussed until after a measure is adopted (and sometimes not even then).

The Commission used Article 4.3 to refuse access to documents in over 25% of initial applications and for the Council the figure was 39.2% (plus an undefined proportion of the 28.2% refused for multiple reasons) [2009 Annual Reports].

The next steps

Although the parliament has agreed to adopt a 1st reading position - after discussions on the definition of a "document" - it is not clear how the issue of the Council's refusal to consider 27 of the parliament's amendments is going to be resolved. When the parliament does adopt its 1st reading position then the Council will start from its position as set out in Council document no: 7791/09 (20 March 2009, pdf). This includes 20 so-called "Admissible" amendments from the parliament.

The parliament does not agree with the 2008 Commission proposals nor its 2011 "Lisbonisation" proposal so it is seeking to meet with the Commission to merge the two proposals and produce a third version which also takes into account the parliament's draft report.

Secret "trilogues"

"Negotiations", as they are called, between the Council and the EP will eventually take place through secret "trilogues" - the documents discussed and the Outcomes (a record of the meetings - produced by the Council) are not made public - only the final "deal" is made available. And it can be anticipated that substantive changes will emerge in this process. See: Statewatch Analyses: Secret trilogues and the democratic deficit (pdf) and European Parliament:
Abolish 1st [and 2nd] reading secret deals - bring back democracy “warts and all” (pdf)

It is argued in Analysis: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments that when the Council and the European Parliament meet together as "legislatures" then these meetings should be public and the documents discussed should be available to all.

Of all the issues that should be discussed openly with all the documents publicly available as they are produced it is surely that of changing the Regulation on public access to EU documents.

Tony Bunyan, Statewatch Director, comments:

"If the price of getting discussions on the Regulation moving is to limit or restrict the current definition of a "document", which has been in place since 1993, then it is far too high a price to pay.

It is 20 years since a Declaration to the Maastricht Treaty was adopted and lead to a Code of access to EU documents which includes the present definition of a "document". The same definition is in the 2001 Regulation which came out of the 1997 Amsterdam Treaty which was said to "enshrine" the right of access. Now reactionary forces in the Commission and the parliament want to turn the clock back. The definition of a "document" is the bedrock of the right of access and of EU accountability.

Open, transparent and accountable decision-making is the essence of any democratic system. Secrecy is its enemy and produces distrust, cynicism and apathy among citizens and closed minds among policy makers."I

Tony Bunyan

For background documentation and developments see: Observatory: the Regulation on access to EU documents: 2008 - 2011

For the full history and documentation on Access to documents in the EU see Statewatch's Observatory: FOI in the EU: Reporting on openness and secrecy in the EU since 1992

---

Statewatch News online | Join Statewatch news e-mail list | Download a free sample issue of Statewatch Journal

© Statewatch ISSN 1756-851X. Personal usage as private individuals/"fair dealing" is allowed. We also welcome links to material on our site. Usage by those working for organisations is allowed only if the organisation holds an appropriate licence from the relevant reprographic rights organisation (eg: Copyright Licensing Agency in the UK) with such usage being subject to the terms and conditions of that licence and to local copyright law.