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EU: Access to documents - 'nutty' NGOs and 'infantile' arguments: the right of reply by Steve Peers, Professor of Law, Law School, University of Essex

08 June 2012

08.06.2012 - According to Commission spokesman, Anthony Gravili, quoted in an euobserver article, most requests for EU documents come from ‘nutty’ NGOs or corporate lawyers. He also denied that the Commission’s proposals would reduce the current standards of access to documents, stating that:

“We have said over and over that every document, every single sentence that would have been released under the old regime would still be released under the new one ... We are just trying to bring extra clarity. The debate is infantile and some people need to grow up."

How much of this argument is convincing?

The ‘nutty’ NGOs and corporate lawyers

In fact, a significant percentage of the disputes brought to the EU Courts concerning the rules on access to documents are brought by elected politicians and journalists - see the well-known cases of Hautala, Turco, Svenska Journalisten, and Carvel, amongst others. This argument also misses the point that NGOs act on behalf of their broader membership. Citizens join NGOs precisely in order to support their efforts to obtain access to documents so that they can take part in public debates and more effectively try to convince the EU to develop policies that they support as regards the environment, animal welfare and so on.

Moreover, this argument misses the point even more profoundly by referring only to specific requests for access to documents. The access to documents policies of the EU institutions (and the legislation itself) include not just a procedure for people or groups to request documents, but an active process of making documents available online. Far more people and groups obtain documents by this route than by making specific requests. Presumably the Commission does not know whether these people and groups are ‘nutty’ NGOs or corporate lawyers – unless it is spying on them somehow.

The ‘infantile’ debate

First of all, is the tone of the debate ‘infantile’? The EP’s rapporteur, Michael Cashman, is aged 61 according to his online profile so it seems reasonable to assume that he is acting maturely during negotiations. Indeed, if he grew up much more he would have to retire.

What about NGOs? The tone of the recent letter to the Council by Access Info Europe, Greenpeace and four other NGOs, on behalf of 132 NGOs in total, stated that ‘in the main it [the latest proposal] is likely to severely limit that right [of documents] in a way which is inconsistent with international standards.’ That sounds sufficiently grown-up.

Secondly, is the debate ‘infantile’ simply because, as Mr. Gravili appears to believe, it is blindingly obvious that the Commission and the Council do not want to lower current standards? Each of my analyses for Statewatch of the Commission and Council’s drafts of the Regulation to date concluded that overall, the proposals would lower current standards. However, I consistently point out those specific amendments of the EP and the Council that would raise current standards. (The Commission has never proposed a single amendment that would raise them).

My conclusions on this point are founded on my 27,000 word analysis of the current Regulation (published in the Yearbook of European Law), plus my 140-page compilation of the case law for Statewatch. If the Commission wants to rebut these arguments, why does it not publish its own analysis on this point?

Moreover, the letter to the Council from Access Info Europe and others, on behalf of 132 NGOs, stated that a recent draft would ‘significantly weaken the right of access to EU documents’. But Mr. Gravili presumably does not take seriously the analysis of what must seem to him to be a (very large) bag of nuts.

More specifically, in the latest drafts under discussion, there are two points which, in my view, would undermine current standards. The first of these is the complete exclusion of documents from the rules unless those documents have been ‘drawn up by an institution and either formally transmitted to one or more recipients, submitted for filing or registration, approved by the competent official, or otherwise completed for the purposes for which it was intended’ or where they have ‘been received by an institution’. It is obvious from Mr. Gravili’s own comments that the institutions now receive requests for documents that would fall within this category (‘details of every e-mail, every phonecall or note ever written at any level’). So unless the institutions in all such cases validly refuse to release any of the documents requested – which would clearly breach the current rules as interpreted by the EU courts – it obviously follows that such a change would reduce the current standards of access to documents.

The second such change is a proposed presumption relating to legal advice. This would read as follows:

The disclosure of legal advice documents relating to issues which are the subject of a decision-making process until the relevant Act becomes definitive or regarding a question which has not been decided, in last instance, by the Court of Justice, shall be considered to undermine the protection of legal advice under Article 4(2).

This compares to the judgment of the Court of Justice in the Turco case, which concluded that ‘…Regulation No 1049/2001 imposes, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process’, subject to a possible exception where such documents were ‘of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question’ (paras 69 and 70).

Moreover, in the recent judgment in In’t Veld, the General Court applied this principle to the EU’s international negotiations as well:

The finding that the risk that the disclosure of legal advice relating to a decision-making process could give rise to doubts concerning the lawfulness of the adopted acts is not sufficient to constitute a threat to the protection of legal advice [referring to the Turco judgment] is, in principle, transposable to the field of the international activity of the European Union, because the decision-making process in that area is not exempt from the application of the principle of transparency (para. 76).

The reduction in standards on this point is as clear as day. A strong presumption in favour of release of these documents would be changed into a presumption against release.

If the Commission truly wanted to ensure that nothing in the revised Regulation lowered standards as compared to the current Regulation, it could have proposed wording in the preamble to the new Regulation to ensure that was the case. There are plenty of examples of other EU legislation which provide for this (see the Annex). But the Commission made no such proposal.

Conclusion

‘Sticks and stones may break my bones, but words will never hurt me’. The Commission’s decision to engage in petty personal abuse of the critics of its access to documents proposals, rather than debate the substance, is a sure sign that it does not have any good arguments of substance to use. It is a huge shame that at a time of a crisis of legitimacy of the EU, the Commission does not seize the opportunity to support a move towards significant greater openness of the EU, but instead decides to snipe at and insult the people and groups that do. Who really ‘needs to grow up’ the most?

Annex

Recital 3 (in part), Directive 2004/38 on EU citizens’ right to move and reside freely:

It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

Recital 19, Directive 2011/95 on qualification for refugee and subsidiary protection status:

In the light of the results of the evaluations undertaken, it is appropriate, at this stage, to confirm the principles underlying Directive 2004/83/EC as well as to seek to achieve a higher level of approximation of the rules on the recognition and content of international protection on the basis of higher standards.