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EU: Revising the Access to documents Regulation saga - The beginning of the endgame

01 February 2012

- "Now is not the time to compromise on transparency" (Michael Cashman MEP)
- Danish Council Presidency invokes "the space to think"
- Council and Commission question the definition of a "document"
- Council seeks to restrict access to legislative documents
- "The outcome of the process which is now being embarked on will determine the future of democratic accountability on the EU" (Tony Bunyan, Statewatch Director)

The "state of play"

As the endgame starts there is a real danger that a (political) qualified majority in the Council will give the Commission the excuse to reject the many progressive amendments in the European Parliament's position, including on the definition of a "document" (which has been in place since 1993). The outcome of the process which is now being embarked on will determine the future of democratic accountability on the EU.

On 15 December the European Parliament finally adopted its 1st reading position on the European Commission's proposals to revise the 2001 Regulation on public access to EU documents. The Commission responded with a highly negative way: Commission response (pdf) to many of the parliament's amendments to its proposals and the Danish Council Presidency circulated a Note to be discussed in the Working Party on Information on 9 March 2012.

Background: Commission revising proposal followed by an "institutional impasse"

The Commission's proposal to amend the Regulation was adopted in April 2008 but was followed by an "institutional impasse": see: The State of Play: Amending the Regulation on public access to EU documents - an "institutional impasse". The parliament's draft 1st reading report was rejected by the Council of the European Union and the European Commission refused to move until the two sides began to negotiate. The Council's Legal Service advised it to reject the European Parliament's position. The released version of the Council's Legal Service is massively censored containing no information on the issues: Opinion of the Legal Service (dated 17 February 2009, pdf). However, the substantive point in the Council Legal Service's Opinion was 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.

Commission proposes further amendment - which fails to meet Lisbon Treaty standards

Then in March 20011 the Commission produced a further amendment to the Regulation in order to effect changes resulting from the Lisbon Treaty: March 2011 amendment (pdf) for a critique of which see: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments and for full background see: The European Commission is the problem

September 2011: An exchange of letter between the Commission and the parliament: Commission takes a "head in the sand" approach

In September the Commission sent letter to the parliament: Letter from Commissioner Maros Sefcovic 26.9.11 (pdf) to which Michael Cashman MEP, the rapporteur, replied: Response to the Commission letter from Michael Cashman MEP, 28.9.11 (pdf).

In his letter to the President of the parliament Vice President Sefcovic patronisingly questioned whether the parliament's then draft report was the "most appropriate instrument" for achieving its objectives. And it accused the parliament of causing "unnecessary delay" by integrating the, unsatisfactory, "Lisbonising" March 2011 amendment from the Commission into its main report on the Regulation. The letter ended by saying that the current deadlock was "detrimental to the image of the European Union" and that he wanted to pursue a "constructive dialogue" to adopt:

"a modernised, streamlined new legal text regarding the citizen's fundamental right of access to documents of the EU institutions and bodies"

This statement is utterly at odds with his assertion that the definition of a "document" should be "clarified" - a definition which has been in place since 1993 and only created a problem for the Commission because it never accepted, or respected, the obligation laid down in the 2001 Regulation: see: EU: Deepening the democratic deficit: the failure to “enshrine” the public’s right of access to documents and: Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf)

Michael Cashman MEP replied in a letter to Conference of Presidents (the party leaders): i) that the Commission's 2008 proposal and the March 2011 amendment did not provide a sound legal basis for access to documents; ii) the Commission would not modify its proposal without the backing of a majority in the Council and that "procedural quarrelling" in the Council "reflected the lack of willingness of many Member States to improve the existing legal framework"; iii) the Commission wanted the parliament to quickly adopt the March 2011 amendment which was in his view "at best, a cosmetic amendment"; (iv) and concluded:

"The European Parliament should not back down on its position it has followed for the last ten years, and which has been strongly supported by the civil society, academics, the European Data Protection Supervisor and the European Ombudsman. Now is not the time to compromise on transparency." (emphasis added)

December 2011: Parliament adopts its 1st reading position and the Commission responds

This impasse was ended by the European Parliament when it finally adopted its 1st reading position in December 2011: European Parliament: 1st reading position, 15.12.11 (pdf) and this was backed by the June 2011: Heidi Hautala MEP report (pdf)

The Commission then produced a report on the parliament's position: Commission response to EP 1st reading: Communication de la Commission sur les suites données aux avis et résolutions adoptés par le Parlement européen lors de la session de décembre 2011 (pdf) which needs to be read with the parliament position above.

The Commission report gives a complex list of which of the parliament amendments it rejects, will consider and accepts - overall it says that 25 amendments (excluding the recitals) are not "compliant with the Inter-Institutional Agreement on Recasting". However, they are prepared to take into "consideration" 10 amendments "at a later stage" (whatever that means) and can accept 9 amendments "subject to redrafting". They then list 9 amendments that they reject.

These nine concern a number of substantive issues in the parliament's position: 1) they reject amendment 30 which concerns the definition of a "document" - which underpins the fundamental principle of openness, see: Comments on the definition of a "document" in the Commission proposal: Back to the age of the "dinosaurs"? 2) Amendment 38 limiting the rejection of public interest disclosure complaints; 3) Amendment 43 on Member State documents on the grounds that it "would severely reduce the Member States' ability to object to disclosure originating from them - Comment: Exactly; 4) Amendment 58 concerns making publicly available documents concerning legislative or non-legislative acts on the nonsensical grounds that "proactive disclosure of all non-legislative documents creates a disproportionate administrative burden"; 5) Amendment 67 where the Commission seeks to make it a copyright offence to "obtain copies of documents" - which the parliament wants to delete.

The Commission note does express a view on some of the 25 parliament amendments are not "compliant with the Inter-Institutional Agreement on Recasting" but fails to explain why 13 of these amendments are simply rejected. These include: Amendments 41 and 44 from the parliament: a) Amendment 41 concerns exceptions where documents may be disclosed before the 30 year rule - the parliament seeks to include an exception so that this rule would not apply to documents concerning procedures leading to a legislative act or delegated or implementing act of general application; Amendment 44 is dismissed by the Commission without any reasoning - the change would require the Council and Commission to make publicly available all the documents concerned with the legislative process (including "any preparatory document linked to legislative procedure") and those for delegated and implementing powers.

Similarly no reason is given for not considering Amendments 37 which would amend Article 4.3 of the Regulation so that a denial of access to a document under discussion would have to manifestly and seriously undermine the decision-making process."

The net effect of the Commission's positions would remove nearly all of the progressive amendments in the parliament's position.

February 2012: The Council engages for the first time - after four years of sitting on its hands

The Danish Council Presidency has produced a "non-paper" which will be discussed in the Working Party on Information on 9 March 2012. This is divided into a "limited" number of issues where a "possible compromise" might be found and issues on which "agreement is not excluded" but need "further reflection".

The Presidency non-paper is cautious when dealing with the Commission proposal, rejected by the parliament, to severely limit the definition of a "document" to the final versions "formerly transmitted" instead of any document what ever its form - which has been in place since 1993. It simply says that if the definition of a "document" is to be open for discussion then the question of databases should be clarified.

On integrating the Arhus Convention on the environment the Presidency seeks to explore the with the parliament amendments 38 and 39. Similarly on the appointment of Information Officers as put forward in parliament amendment 62 a "constructive" approach is proposed.

The most worrying aspects of the Presidency non-paper concern access to Member State documents and access to legislative documents.

- Member State documents: the note says where they are submitted for "discussions in the Council's preparatory bodies" they are considered to be Council documents and Member States are "not consulted". Where a Member State document does not concern a legislative act or non-legislative act the Member States have the right of veto. The Presidency propose to leave the current provision place.

However, this means that Member State documents concerned with implementation/practice or surveys etc are subject to veto leaving a gapping hole in democratic accountability - which neither the Commission nor the parliament address.

- which logically brings us back to one of the most progressive proposals in the parliament amendments - the right of access to legislative documents. The Presidency calls attention to Amendment 44 from the parliament on making all legislative and others documents available and notes too the parliament says exceptions in Article 4 "should not be invoked at all in relation to legislative documents".

The Presidency on the one hand "invites delegations to consider whether (parts of) the proposals made by the European Parliament could form the basis of an initial discussion" on this question and on the other ask whether"categorical limitations" could be placed on public access to legislative documents. And compounds this perspective by asking the question: "At what stage of drafting should a document be covered by public access?"

Sorry, a "document" is a "document"

In a footnote the Danish Council Presidency says, extraordinarily, that a "document" must have reached a:

"certain form before the public has any interest in acquainting itself with its contents" ! [emphasis added]

And concludes that:

"Even in preparatory stages, the authorities are granted "space to think""

The "space to think" (not the public's right to know) was invented by the Commission back in 1999 (thus amending the 1993 Code of access through Article 4.3 of the 2001 Regulation).

Another option considered by the Council Presidency is the the recording of meeting might lead to "less specific reporting, thus resulting in facto less transparency? Introducing deliberate institutional secrecy.

What about the Treaty commitments?

There is scant reference to the Treaty commitments from either the Commission or the Council. After all the initial Commission proposals to which they are reacting were drafted in April 2008 well before the Treaty's adoption.

The Treaty of the Functioning of the EU (TFEU) states in Article 15:

"1. In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible.

"2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act."

And in Article 15.3, para 5:

"The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulations referred to in the second subparagraph." (emphasis added)

To the citizen this commitment might seems pretty categorical - after all we were told that Article 255 of the Amsterdam Treaty had already "enshrined" the public's right of access to EU documents - but in the hands of the Member States (the EU governments) and the officials of the Commission such commitments take on an altogether different meaning in order to preserve secrecy and the "space to think"

This commitment is reinforced by, the rarely mentioned, Article 11 of the TEU which says:

"1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society."

How can citizens and civil society make known "their views in all areas of Union action" if they do not know what is going on, what is being discussed and equally how can there be "an open, transparent and regular dialogue with representative associations and civil society?

Tony Bunyan, Statewatch Director, comments:

"In 2001 we got half of the cake with the Regulation on access to EU documents. Under the Commission and Council ideas we would be left with a just quarter. Democracy is fuelled by informed citizens and civil society, this time there must be no "compromise" in finally "enshrining" the people right to know. The outcome of the process which is now being embarked on will determine the future of democratic accountability on the EU."

Sources
1. Council Presidency Note to the WPI, 13.2.12 (EU doc no: 6439/12, pdf)
2. Commission response to EP 1st reading: Communication de la Commission sur les suites données aux avis et résolutions adoptés par le Parlement européen lors de la session de décembre 2011 (pdf)
3. European Parliament: 1st reading position, 15.12.11 (pdf)
4. Response to the Commission letter from Michael Cashman MEP, 28.9.11 (pdf)
5. Letter from Commissioner Maros Sefcovic 26.9.11 (pdf)
6. Commission proposal to amend Regulation (3.4.08, pdf)
7. Regulation No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (pdf)

For full Background documentation see:

Statewatch Observatory on the revision of the Regulation on access to EU documents: 2008-ongoing

Statewatch Observatory: FOI in the EU (from 1993 onwards)