Statewatch News Online: EU: Analysis of the latest draft of the Access to Documents Regulation
28 March 2012
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EU
Analysis of
the latest draft of the Access to Documents Regulation
07.06.2012 
This latest draft (document
1397/12, 4 June 2012) is clearly based on the 'technical
draft' of the regulation released recently, with certain changes.
The following are the changes from the technical draft, with
comments:
1) There is a new Article 3b, instead of a new Article
4.6a in the technical draft. This is based on Art. 5a(1) of the
European Parliament's (EP's) proposed amendments. While this
text would improve the status quo, it would be inferior to the
proposed Article 4.6a in the technical draft, because a) it does
not apply to all quasi-legislative procedures, but only where
the institutions act under 'delegated powers' (not defined);
this could be interpreted as a reference to the adoption of delegated
acts by the Commission only, and not to the adoption of implementing
acts or other non-legislative acts of general application by
the Commission or Council; b) it is less clear what the practical
consequences are.
In the EP draft as a whole, these weaknesses were not very important
because Article 4(7) of the EP draft would have abolished the
decision-making exception entirely as regards procedures to adopt
a much more clearly defined category of legislative and non-legislative
acts of general application. At the very least, Article 3b should
take on board this definition of its scope from the EP draft
of Article 4(7): 'documents transmitted within the framework
of procedures leading to a legislative act or delegated or implementing
act of general application.'
2) Article 4.1.b is now amended by using the Commission
text from Article 4(5) of its 2008 proposal, rather than (in
the technical draft) using the EP's text. While this version
of the amendment would still improve the status quo (in light
of the poor judgment of the ECJ in the Bavarian Lager II case),
the EP's text is preferable because it is broader, referring
not just to names but to professional activities of a person
and to data concerning public persons.
3) There are some changes to the structure of the proposal
relating to the presumptions:
- Article 4a.2 in the technical draft is now Article 4.3b(a);
- Article 4a.1 in the technical draft is now Article 4.3b(c);
it has been amended compared to the technical draft (see below);
- Article 4a.3 in the technical draft is now Article 4.3b(d);
- Article 4a.4 in the technical draft is now Article 4.3b(e);
it has also been amended compared to the technical draft (see
below); and
- Article 4a.5 in the technical draft is now Article 4.3b(f).
Furthermore, Article 4.3b(b) re-inters the presumption relating
to legal advice, which was expressly dropped from the technical
draft. Unlike most of the other provisions of the draft Article
4.3b, this clause does NOT reflect the status quo as interpreted
by the Court of Justice, but rather seeks to OVERTURN the case
law of the Court - in particular the Turco judgment of the Court
of Justice, but also the recent In't Veld judgment of the General
Court (which the Council is about to appeal to the Court of Justice).
This part of Article 4.3b would therefore obviously lower standards
as compared to the status quo.
As for the other changes since the technical draft: a) Article
4.3b(c), which concerns investigations, et al, is extended in
scope to include criminal proceedings (this broadly reflects
the status quo in the case law) and the second sub-para is amended
to provide for a presumption rather than a total exclusion of
documents. This improves standards as compared to the technical
draft (and is not as legally dubious as a complete exclusion)
but still reduces standards as compared to the status quo, in
particular because it provides for the presumption to continue
even after the decision, etc has been taken. b) Article 4.3b(e)
has been amended to raise the threshold which the applicant for
documents would have to satisfy to overturn the presumption (adding
the word 'clearly') and to specify that overturning the presumption
does not simply mean that the document will be released, but
only that an individual examination would have to be carried
out. Both changes lower standards as compared to the technical
draft and arguably also the status quo.
If Article 4.3b(c) is to be included in the text, the recitals
in the preamble must make clear that even if the institutions
in such circumstances might legitimately refuse to release the
relevant documents to the public, those institutions could be
required nevertheless, pursuant to other rules of EU law, to
release the documents concerned to the persons under investigation,
in order to ensure their right to defence (cf the Sison cases).
4) Article 4(5) - this differs from the technical document
because a sentence has been dropped, providing for a Member State
to refer to its national law as regards the application of a
particular exception. The case law already permits Member States
to do this, so dropping an express reference to this possibility
probably would not change the status quo.
5) Article 12 - this differs from the technical document
because a) the inter-institutional website is now a portal; b)
it is referred to in para 2 instead of para 1, so does not apply
to documents as a whole, but only to documents concerning legislative
or quasi-legislative procedures; c) the categories of documents
to be included are amended to drop any reference to Member State
representatives in Council bodies, and to shorten the references
to preparatory documents (dropping the references to legal advice
and to consultation and impact assessment information) and documents
produced during decision-making (dropping the references to legal
advice, working party papers including MS positions, EP committee
documents, compromise proposals and trilogue documents); d) there
is a new 12.2a, requiring institutions to make references to
their preparatory documents in legislative procedures on this
portal; and d) 12.3a in the technical draft has been dropped;
this required the institutions to provide information on the
different stages of the procedures.
Taken as a whole, the changes to Article 12 would lower standards
as compared to the technical draft, in particular because the
specific references to legal advice and all of the key documents
produced in legislative procedures have been dropped. Also, the
obligation to make documents available in Article 12.2 is limited
by reference to Article 4 - so the lowering of standards in Article
4 as compared to the technical draft would also entail a lowering
of standards as regards Article 12.2 as a knock-on effect.
Overall appraisal
The technical draft would, on the whole, have increased standards
modestly as compared to the status quo, EXCEPT FOR the (illegal)
exclusion of large categories of preparatory documents pursuant
to Article 3a, which would have undercut all of the increases
in standards and resulted in a significant drop in standards
overall.
Compared to the technical draft, this latest draft sets significantly
lower standards as regards Articles 3b and 4.3b and lower standards
as regards Article 4.1(b) and 12. It does not really change the
position as regards Article 4.5. It would therefore, even leaving
aside Article 3a, LOWER standards as compared to the status quo,
in particular due to the overturning of the Turco judgment. Including
the effect of Article 3a, the latest draft would result in a
VERY SIGNIFICANT drop in standards as compared to the status
quo.
It should go without saying that under no circumstances should
the EP agree with this text as it stands.
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