Reporting on openness and secrecy in the EU since 1992
New additon: documentation on the 2022 proposal for a Regulation on security of EU information
Statewatch: Observatory: the Regulation on access to EU documents: 2008 – 2015 which tracks and places on record all the news, analyses and documentation concerning proposed changes to the Regulation on access to EU documents.
“A future-proof and effective EU requires a Union that is accountable and enjoys the trust and participation of its citizens. Enhancing openness and sharing information are key, as it brings citizens closer to the EU and enables the institutions to enjoy greater legitimacy, accountability and effectiveness.”
Statewatch Briefing: Another step towards ending EU law-making through secret trilogue meetings (pdf):
Emilio de Capitani’s successful case in the ECJ follows a long line of similar cases – Carvel, Turco, Hautala, Access Info and others – and marks a very important win.
Tony Bunyan, Statewatch Director, comments:
“The parliament discusses and adopts its negotiating position in the open – but as the court noted – it needs to formalise proper procedures for reporting back on the progress of measures.
On the other hand the Council’s discussions on reaching its negotiating position are held in secret working parties – with most documents marked “LIMITE” (not publicly accessible). Many of the arguments for democratic accountability to citizens emphasised by the court also apply to the positions taken by Members States in these closed fora.
And finally, secret trilogues should be open to the public so that we can all see democracy in action.”
EU: A victory for openness and transparency: The European Parliament must in principle grant access, on specific request, to documents relating to ongoing trilogues – The work of the trilogues constitutes a decisive stage in the legislative process (Press release, pdf):
“In today’s judgment, the General Court finds, first of all, that even after the making available to the public of the documents at issue, Mr De Capitani did not lose his interest in bringing proceedings, since the alleged unlawfulness is liable to recur in the future independently of the circumstances which gave rise to the action brought.
Next, as regards access to the fourth column of trilogue tables concerning an ongoing legislative procedure and emphasising that the principles of publicity and transparency are inherent to the EU legislative process, the General Court finds that no general presumption of non-disclosure can be upheld on the basis of the nature of a legislative procedure.(…)
“It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.”
See: Judgment – full-text (pdf)
And: Publish secret law files, demands EU Court in transparency ruling (euractiv, link)
European Ombudsman: Ombudsman says Member States must open up their opaque negotiations on EU laws
“The Ombudsman specifically criticises the Council’s failure systematically to record the identity of Member States taking positions during discussions on draft legislation, and the widespread practice of disproportionately marking documents as not for circulation, or LIMITE (,,,)
“It’s almost impossible for citizens to follow the legislative discussions in the Council between national government representatives. This ‘behind-closed-doors’ approach risks alienating citizens and feeding negative sentiment,” said Ms O’Reilly.”
Council of the European Union adopts policy on “open data” – but will continue to keep a lot secret
– Reuse is subject to: “the obligation not to distort the original meaning or message of the documents.” and the current rules to keep LIMITE documents secret will continue.
EU: ACCESS TO LEGISLATIVE DOCUMENTS: Council of the European Union: Own-initiative inquiry OI/2/2017/AB by the European Ombudsman concerning access to documents relating to Council preparatory bodies when discussing draft EU legislative acts: Draft reply of the Council of the European Union (LIMITE doc no: 8808-REV-1-17, pdf): The Council questions the right of the Ombudsman to conduct an inquiry on grounds of maladministration into legislative matters:
“The Council is of the view that the exercise of legislative powers is not limited to the adoption of political choices on legislative files. It also includes the choices according to which the legislators decide to organise the legislative process itself. The organisation of the legislative process cannot be considered an administrative activity – and therefore cannot give rise to possible instances of maladministration – but ought rather to be regarded as an essential aspect of the exercise of the legislators’ prerogatives.” [emphasis added]
European Ombudsman launches Inquiry into availability of Council legislative documents
Tony Bunyan, Statewatch Director comments: “the root of legislative secrecy lies in secret trilogues”
On 10 March 2017 the European Ombudsman launched an inquiry into: “the disclosure of documents from discussions on draft EU legislative acts in Council preparatory bodies.”
See: Access to documents relating to Council preparatory bodies when discussing draft EU legislative acts (pdf)
The letter to the Council observes that:
“The General Secretariat of the Council (GSC) does not proactively make available documents reflecting the positions of individual Member States during negotiations. This approach, however, is without prejudice to the right of public access to documents provided for in Regulation 1049/20015. These documents can be made available after the act in question has been adopted, provided that they are not covered by any exception laid down in Article 4 of Regulation 1049/2001.“ [emphasis added]
The notion that legislative documents are only made public after a measure is adopted has no place in a democracy.
The reality is that Member States positions in the Council developing its negotiating position are hidden in LIMITE documents see for example: RECEPTION DIRECTIVE: Proposal for a Directive of the Council laying down standards for the reception of applicants for international protection (LIMITE doc no 7004-17, pdf) 97 Footnotes with Member State positions.
Ombudsman calls for more trilogues transparency (Press release, link):
“The European Ombudsman, Emily O’Reilly, has called on the European Parliament, the Council of the EU and the European Commission to further increase the transparency of law-making in the EU by publishing key documents related to their informal negotiations known as “trilogues”.
These documents include trilogue dates and summary agendas; the positions of both co-legislators on the Commission’s proposal; and the names of the decision-makers present in trilogue meetings. Documents that track the main stages of the process should be published as soon as possible after the negotiations end….
My proposals also allow for legislators to have the political space they need to negotiate, deliberate and to come to agreement.” (emphasis added)
In the Case Summary (link) and the Ombudsman’s Decision (pdf) the Ombudsman concludes that:
“so-called Trilogues, which are informal meetings between representatives of the three institutions involved.”
and:
The Ombudsman welcomes the progress so far on improving the transparency of Trilogues; however she proposes that the three institutions make the following documentation and information publicly available: Trilogue dates, initial positions of the three institutions, general Trilogue agendas, “four-column” documents, final compromise texts, Trilogue notes that have been made public, lists of the political decision makers involved and as far as possible a list of other documents tabled during the negotiations. All of these should be made available on an easy-to-use and easy-to-understand joint database. While some documents could be made available while Trilogue negotiations are ongoing, the institutions might consider it necessary in the public interest to provide proactive public access to certain types of documents only after negotiations have ended.” [emphasis in original]
Tony Bunyan, Statewatch Director, comments:
“Trilogue meetings between the Council of the European Union and the European Parliament with the European Commission are described as “informal meetings” when in reality they are meetings of the EU legislature – they should be held in public like any legislature in a democracy.
The biggest change will be the publication of “four-column documents” stating the current state of play, as already agreed, in the 4th “compromise” column. The opportunity for citizens, civil society and national parliaments to intervene and make their voices heard are non-existent and would only be meaningful if there was a pause in discussions for several months.
The final “compromise text” is set in stone. The Council Presidency sends a formal letter of agreement to the Chair of the relevant parliament Committee. The Committee and the parliament’s plenary meeting cannot change a dot or comma. 85% of new measures are agreed through this process – it is a travesty of democracy.”
Statewatch was amongst the first to criticise secret trilogues: See: Secret trilogues and the democratic deficit (September 2007, pdf) – European Parliament: Abolish 1st [and 2nd] reading secret deals – bring back democracy “warts and all” (pdf) – Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf)
Transparency in the EU: citizens’ right controlled by the elite (journalismfund.eu, link): ” Fifteen years with access rules and still no register over documents to look for. Not only citizens, also governments are kept in the dark by the Commission, a new study on EU transparency shows.” See: Transparency through tinted windows – On the conditional openness in the European Commission (pdf)
EU: Secret trilogue law-making: Giegold: I’ve no problem with livestreaming secret talks on EU law (euractiv, link):
“The lead MEP on a European Parliament transparency report has said that he was lobbied “all the time” during secret negotiations over EU law, and had better access to classified documents just because he is German. Sven Giegold exclusively told EurActiv he wouldn’t care if “trialogue” discussions were livestreamed and branded a European Commission push for better regulation an attack on parliamentary democracy.
I think that there is a problem of transparency and accountability, and that has to be changed. There’s also a problem of integrity. There’s a problem with transparency because there’s no minutes, because it is not clear when they take place, it is not clear who has participated.
There is also a lack of accountability, because it is not transparent about who has defended which position in the negotiations. Lastly, there is a problem with integrity. The documents that are meant to be secret are not secret. I’ve seen it very often that lobbyists have documents given to them through sources in the Parliament, or more often through the Council.”
EU: SECRET, CLOSED, TRILOGUES: NGO Letter to the Council, the Commission and the European Parliament (pdf):
“We, the undersigned organisations, hereby express our concern regarding the pervasive use of so-called “trilogue” negotiations within the EU decision-making process. It is our view that the trilogues have, regardless of intent, become a means for EU institutions to bypass democratic good practices, prevent public participation and are contrary to the principles of transparency and accountability recognised under the EU treaties, including citizens’ right to access public documents.
In light of the outlined problems, we are calling for a major reform of the trilogue process in order to end this unacceptable democratic deficit in the EU decision-making. We call for the publication of all documents in a timely and systematic manner.
Further, we ask that disclosure not be limited to the multicolumn meeting documents, but also to public access to the meetings and access to any reports or notes discussed over the course of the process, in line with the procedures for normal Parliament committee meetings. There is an overriding public interest in the timely and systematic disclosure of these documents in order to enable proper public scrutiny of EU decision-making.”
Signed by 16 EU NGOs including Statewatch
SPECIAL: EU Ombudsman investigating secret “trilogue” decision-making but:
The Council challenges the right of the European Ombudsman to conduct an inquiry into secret “trilogues” (in which most EU legislation is decided)
In May 2015 Emily O’Reilly, the European Ombudsman, began an Own-initiative Inquiry on the “transparency of trilogues (pdf), But the Council of the European Union challenges the right of the Ombudsman to carry out such an inquiry: Council response to the Ombudsman (pdf)
“Trilogues” are meetings of the two EU co-legislators: the Council of the European Union (the 28 EU governments) and the European Parliament (with the European Commission in attendance). The purpose of trilogues is to speed up decision-making by agreeing new legislative measures quickly at 1st reading.
Steve Peers, Professor of Law, University of Essex, comments: “The Council’s objection to the Ombudsman’s competence is totally unfounded”
Tony Bunyan, Statewatch Director, comments: “Over 80% of all new EU laws are agreed in these secret trilogues – they should have no place in a democracy worthy of the name – they should be held in the open with full public access to documents so that we can see what is being decided in our name.”
As part of the Inquiry the Ombudsman has organised a Consultation meeting (link) on 28 September 2015 (10.00 – 12.00 in Room JAN 4Q1 of the European Parliament in Brussels).
Statewatch was amongst the first to criticise secret trilogues: See: Secret trilogues and the democratic deficit (September 2007, pdf) – European Parliament: Abolish 1st [and 2nd] reading secret deals – bring back democracy “warts and all” (pdf) – Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf)
EU: Important challenge to secrecy of EU decision-making: How the EU “legislative triangle” is becoming a “Bermudes, triangle (EASFJ, link):
Emilio de Capitani applied to the European Parliament for documents summarising negotiations between the Council of the European Union and the European Parliament is secret trilogue meetings, namely:
“multicolumn tables (describing the Commission proposal, the Parliamentary Committee orientation, the Council internal bodies suggested amendments and, if existing, suggested draft compromises) submitted to trilogues for the current pending co-decision procedures”
The parliament refused access largely on the grounds that multi-column documents in its position had been produced by the Council and therefore could not be released. They also claimed that there are a large number of such documents – exactly!.
EU Transparency and decision-making: NON PAPER – April 2015: Denmark – Estonia – Finland – The Netherlands – Slovenia – Sweden: Enhancing transparency in the EU (pdf)
“This paper mentions several steps that could be taken within the Council framework to enhance transparency, most importantly by focusing on active transparency, whereby the institutions pro-actively make their documents public and work in the most transparent manner.”
EU: Ombudsman opens investigation to promote transparency of “trilogues” (pdf, letter to the Council of the European Union)
The European Ombudsman, Emily O’Reilly, has opened an investigation into the transparency of “trilogues” with a view to boosting transparent law-making in the EU. Trilogues are informal negotiations between the European Parliament (EP), the Council and the Commission aimed at reaching early agreements on new EU legislation.
See: Statewatch Analyses: Secret trilogues and the democratic deficit (pdf) and Abolish 1st [and 2nd] reading secret deals – bring back democracy “warts and all” (pdf)
EU Ombudsman: Annual Report for 2014 (pdf)
European Parliament Study: Comparative study on access to documents (and confidentiality rules) in international trade negotiations (pdf):
“It is extremely difficult to strengthen parliamentary oversight of the EU’s trade policies without clear and predictable rules and procedures for the EP to access relevant information from the Commission and the Council. This study provides an overview on the rules guaranteeing access to information in international trade negotiations both in the EU and in selected third countries.”
EU: OPENNESS: Secretive ‘trialogue’ talks to agree EU law face investigation (euractiv, link):
“Three-way talks between the major European institutions to broker deals on EU law face being investigated over their lack of transparency by the bloc’s maladministration watchdog.”
See: Statewatch Analyses by Tony Bunyan: Abolish 1st [and 2nd] reading secret deals – bring back democracy “warts and all” (pdf) and Secret trilogues and the democratic deficit (pdf): “Under a new agreement between the Council and the European Parliament the efficiency of decision -making is enhanced at the expense of transparency, openness and accountability “
EU Parliament promises a better document register (EDRI, link): “In 2011 the Foundation for a Free Information Infrastructure (FFII) discovered that some European Parliament decisions regarding the ratification of the Anti-Counterfeiting Trade Agreement (ACTA) were not recorded in any known document. A hidden class of documents (“coordinators’ minutes”) seemed to exist, but the Parliament denied their existence. The FFII filed a complaint with the European Ombudsman.”
““Parliament should register all existing Parliament documents in its electronic Register of documents, in particular the minutes of the meetings of Parliament Committee Coordinators.””
UK-COMMISSION: European Ombudsman: Says applicant must be given access to documents held by the European Commission related to UK’s GCHQ (pdf): “the complainant, a German journalist, asked the Commission for access to documents in its possession in connection with the surveillance of the internet by UK state agencies (mainly the intelligence service ‘Government Communications Headquarters’, otherwise known as ‘GCHQ’), in accordance with EU rules on access to documents.”.
EU: European Commission: REPORT ON ACCESS TO DOCUMENTS: Report on the application in 2013 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (pdf):
“The frequency of invoking the protection of the Commission’s decisionmaking process (Article 4(3)) as ground for refusal at the initial stage, in relation to all invoked exceptions, slightly increased in comparison with the previous year (27.1% against 25.2% in 2012). It was the most frequently invoked exception,…” [emphasis added and 16.3% of confirmatory applications are refused on the same grounds]
And see: Annex – statistics (pdf)
EU: ACCESS TO DOCUMENTS: Sophie in ‘t Veld MEP case: Council of the European Union try to find ways round the Court judgment: Judgment of the Court of Justice in Case C-350/12 P – Council v. Sophie In ‘t Veld (pdf)
Dutch liberal Sophie in ‘t Veld wins transparency lawsuit against the Council of Ministers (ALDE group, link) See Judgment full-text: Council appeal against the judgment of May 2012 (pdf) and Judgment: May 2012 (pdf): Lawyer Onno Brouwer who represented Sophie in ‘t Veld in this case and others in landmark transparency cases before the General Court and the Court of Justice, challenging EU institutions on openness and accountability, says: “the Court’s view that a European institution must demonstrate that the disclosure of a document effectively harms the public interest is of great practical importance for journalists, interest groups and all those who wish to obtain access to EU documents”.
UPDATED: ECJ: Dutch liberal Sophie in ‘t Veld wins transparency lawsuit against the Council of Ministers (ALDE group, link) See Judgment full-text: Council appeal against the judgment of May 2012 (pdf) and Judgment: May 2012 (pdf)
In July 2009, Dutch liberal MEP Sophie In’t Veld (D66) demanded access to a legal opinion to the Council regarding the legal base of the SWIFT-agreement. Access to her was denied and kept secret. In ‘t Veld then brought action before the General Court, and won. The Council appealed against the ruling. But the European Court of Justice has now judged that the request must again be dealt with appropriately by the Council and that enhanced transparency is needed.
In ‘t Veld: “This is a great victory. The Court clearly states that transparency is a prerequisite for a truly democratic Europe. The European Union must develop from a Europe of diplomats, discretion and confidentiality to a Europe of citizens, administrative transparency and trust. “
Lawyer Onno Brouwer who represented Sophie in ‘t Veld in this case and others in landmark transparency cases before the General Court and the Court of Justice, challenging EU institutions on openness and accountability, says: “the Court’s view that a European institution must demonstrate that the disclosure of a document effectively harms the public interest is of great practical importance for journalists, interest groups and all those who wish to obtain access to EU documents”.
The CJEU increases public access to legal advice on international treaties (EU Law Analysis, link):
“It is true to say that this process is ultimately democratic, since all international treaties agreed by the EU and third States then have to be approved by the Council, and most have to be approved by the European Parliament and often also national parliaments. However, it is not democratic in the full sense of the term, since there is a very limited opportunity for an open and public debate (as compared to the legislative process) before the negotiations have concluded.”
STATEWATCH: ACCESS TO EU DOCUMENTS: Calling the agencies to account: Frontex, Europol & Eurojust: Statewatch complaints & Ombudsman’s own initiative Inquiry
- Frontex given until end of March 2014 to comply with the Ombudsman’s Recommendations to change its Management Board Decision putting into effect the Regulation on public access to EU documents
- Eurojust seeks to avoid any compliance until some undefined point in the future
- Europol meets four Ombudsman Recommendations – but the launch of its public register of documents “planned for completion by the end of 2013” is overdue
Tony Bunyan, Statewatch Director, comments:
“Access to documents is the lifeblood of accountability and democratic standards so why has it taken nine, seven and ten years respectively for these Agencies to start coming into line with EU law on public access to documents? Who is responsible for the failure to ensure compliance with EU law? Is it the European Commission which, since December 2009, has been charged under Article 17 of the Lisbon Treaty with ensuring the application of EU law?
It is high-time that these three agencies were made fully accountable to EU law and to the public by adopting and fully implementing the right of access to documents. I look forward to the Ombudsman re-visiting these complaints.”
EU: Council obstructs ruling on transparency (Wobbing, link) by Staffan Dahllöf: “The Council of the EU has classified its own reaction to a landmark ruling on transparency by the EU-court in Luxembourg. The Court said citizens have a right to know. The Council refuses to disclose how this requirement will be met.” See: Public access to documents (pdf): “Partial access” censors nearly all the content.
But see here the full document: Public acess to documents (LIMITE, 17177/13, 29 November 2013, pdf)
European Parliament: LIBE Committee: Openness, transparency and access to documents and information in the European Union (pdf)
“The Treaty of Lisbon updates the terms under which the principles of transparency and openness clarify the right of public access to documents in the European Union. This right is both a fundamental right of individuals and an institutional principle. The revision of Regulation (EC) No 1049/2001, which sets out the arrangements for this, is influenced, to a large extent, by the numerous interpretations from the Court of Justice of the European Union, particularly during the last five years. Observation of the practice followed by the EU institutions and the broad lines of the practices followed nationally indicate that EU law needs to undergo extensive revision, with the aim of both leveraging the case law experience acquired and bringing itself up to date.”
EU: ACCESS TO DOCUMENTS: European Court of Justice rules in favour of greater transparency of the Council of the EU (Access Info, link) and Full-text of judgment (pdf):
“Madrid/Luxembourg, 17 October 2013 — In a case brought by Access Info Europe, the European Court of Justice today rejected arguments by the Council of the European Union that it should be able to keep secret the identities of Member States making proposals in the context of negotiations on future EU legislation….The Council of the EU had fought to defend its policy of releasing legislative drafting documents with the names of Member States tabling amendments blacked out.”
The document in question. as the court notes. concerned discussions within the Council on amending the Regulation on public to EU documents – it was dated 26 November 2008 and the full-text (with Member States’ positions) was put online at the time by Statewatch: EU doc no: 16338/08 (pdf). At issue was the Council’s deletion of Member States’ positions: The judgment observes in para 8: “On 26 November 2008 – that is to say, the very day on which the requested document was created – an unedited version of the requested document was made available to the public on the internet site of the organisation Statewatch, without authorisation (‘the unauthorised disclosure”).”
EU: EUROPEAN BANK & COURT OF JUSTICE MADE EXEMPT FROM HAVING TO DEPOSIT THEIR HISTORICAL ARCHIVES: Council of the European Union: Council Regulation amending Regulation (EEC, Euratom) No 354/83 as regards the deposit of the historical archives of the institutions at the European University Institute in Florence (pdf) The European Parliament had to “consent” to the proposal, which it did: EP Report (pdf) and said in its Report: “The proposal in fact provides for limited amendments to the existing regulation,such as the obligation for each EU institution (except the Court of Justice and the European Central Bank) to deposit at the EUI its historical archive” (EUI, the European University Institute in Florence).
This seemingly harmless amendment to the rules for the archiving of all the documents of EU institutions (European Council, Council of the European Union, European Commission, European Parliament and agencies and bodies) excludes the Court of Justice and the European Central Bank from its scope – they will be allowed to decide on a “voluntary basis” which documents to deposit or not.
Tony Bunyan, Statewatch Director, commented: “To exclude the Court of Justice and the European Central Bank from the obligation to deposit their documents in EU archives is a backwards step. The rules only apply to documents which are at least 30 years old and if there are specific categories which require longer protection the period could be extended – though it might be asked why? To remove these institutions from the obligation to deposit their archives means that the lessons of history will never be learnt and people will never know what happened and why.”
EU: ACCESS TO EU DOCUMENTS: Council of the European Union press release: Council’s public register of documents hits 2 million mark (pdf): “The Council of the European Union’s public register has reached 2 million documents online. As of today the register contains the references of 2.000.267 documents. Around 75% of these documents are publicly available and directly downloadable. A further 15% are partially available.” [“Partially accessible” means censored] And see: Annual report for 2012 (pdf)
OVER 50% of initial requests to the Council for documents are refused to keep secret discussions on new measures
These figures sound good until the detail is examined in the Annual Report: The reasons for refusal of access on an initial application was 41.3% were for the “protection of the institution’s decision-making process” (this is under Article 4.3 of Regulation 1049/2001). Understandably many applicants are interested in documents which concern new measures being discussed in the Council and its Working Parties yet it would appear that of over 50% are refused – in addition to 41.3% being refused for this reason 30.0% are refused for “Several reasons together” which can also include refusal for the “protection of the institution’s decision-making process”.
EU: ACCESS TO EU DOCUMENTS: Council of the European Union: FIGURES FOR CLASSIFIED/”SENSITIVE” documents given for the first time: Annual report for 2012 (pdf)
Of the documents held or produced by the Council:of the European Union in 2012
13,817 were classified as “Restricted” in 2012 – the highest annual figure ever
1,339 were classified as “Confidential” in 2012
9 were classified as “Secret”
These includes documents produced by the Council and those sent to the Council by the European Commission or the European External Action Service (EEAS). The figures for “sensitive”/classified documents produced by the Council itself (and includes in the figures above) are given as:
None were classified as “Top Secret”
33 were classed as “Secret” in 2012
332 were classified as “Confidential” in 2012 (most are not recorded in the public register)
The figure for the number of “Restricted” documents (the largest category is not given as “Restricted” documents are not referred to in the Regulation, Article 9).
Tony Bunyan, Statewatch Director comments: “The largest category, “Restricted”, 13,817 documents, is of the greatest concern. “Restricted” is defined as where the disclosure of a document would be “disadvantageous” to the interests of the EU or a Member State. The term “disadvantageous” can be used to keep current and ongoing discussions secret and hence stop any critical media coverage – to enforce what has been called “the space to think” for Council and Commission officials and keep the people uninformed and unable to make their views known.”
ACTA: European Court of Justice judgment: Sophie in ‘t Veld MEP v European Commission (pdf). See: Sophie in ‘t Veld (MEP) determined to step up efforts for more transparency in EU (link):
“Today’s ruling unfortunately upholds the culture of discretion and confidentiality of diplomats that was common in the fifties”, Dutch MEP Sophie In ‘t Veld (ALDE/D66) says in a reaction to the judgment of the European General Court in her case against the European Commission for the refusal to disclose documents on the negotiations on the anti-piracy treaty ACTA. The Court ruled, in favour of In ‘t Veld, that the Commission had classified too many documents confidential. However, the Court also supported the Commission by stating that a general confidentiality agreement with negotiating partners is allowed. In ‘t Veld: “This way diplomatic negotiations are routinely classified confidential while citizens are left in the dark.”
EU: European Ombudsman: Ombudsman welcomes the Commission’s disclosure of documents on UK opt-out from Charter of Fundamental Rights (pdf): “The European Ombudsman, P. Nikiforos Diamandouros, has welcomed the European Commission’s decision to give access to documents drafted by its services on the UK opt-out from the EU Charter of Fundamental Rights. This follows a complaint from the European Citizen Action Service (ECAS), a Brussels-based NGO, which wanted to find out why UK citizens do not enjoy the same fundamental rights as other EU citizens. The Commission initially rejected the Ombudsman’s recommendation to disclose the documents. After the Ombudsman addressed a critical remark to the Commission, ECAS again requested access to the documents. The Commission then reviewed its position and released all the documents.” ECAS: EU Rights Clinic and ECAS Secure Release of EU Charter Opt-Out Documents (Press release, pdf) and Background Note (pdf)
EU: Calls for better access to documents gain support in parliament (link)
ACCESS TO DOCUMENTS: European Court of Justice: The ECB was entitled to refuse access to two documents relating to the economic situation in Greece (Press release, pdf): “Any citizen of the EU, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to documents of the European Central Bank (ECB). Nonetheless, the ECB must refuse access to a document where, inter alia, its disclosure would undermine the protection of the public interest.” and Full-text of Judgment (pdf)
EU: European Parliament study: The Citizens’ Right to Information – Law and Policy in the EU and its Member States (711 pages, 3.6MB, pdf)
ECJ: JUDGMENT ON MERGERS AND ACCESS TO DOCUMENTS: The Court defines the scope of the right of access to documents of the EU institutions in the context of merger control proceedings (Press release, pdf): “The Commission may, subject to certain conditions, refuse access to documents relating to merger control proceedings without first carrying out a concrete, individual examination of those documents” Full-text of judgment (pdf)
EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Council seeks to re-write the definition of a “document” after 19 years: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (first reading) – Preparation of informal trilogues (pdf). Since 1993 the definition of a “document” has been that a: “document shall mean any content whatever its medium” and this is in the current Regulation. However, the Council intends to keep this general definition (Article 3) but to add Article 3a: “Documents subject to this Regulation”: which says a document becomes subject to this Regulation (ie: the whole Regulation) when: “it has 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” (emphasis added) In simple terms a “document” is only really a “document” when it is finalised (all the drafts and discussion prior to this are not “documents”) – this is the same definition, which was widely criticised, first put forward by the Commission in 2008. .
The double-faced language of the Council position means also that while it appears in Article 12 that documents concerning legislative and non-legislative acts: “shall, subject to Articles 4 and 9, be made directly accessible to the public” they are still subject to the general rule in Article 3a above. It would thus negate Articles 15.1 and 15.3 para 5 of the Lisbon Treaty.
Tony Bunyan, Statewatch Director, comments:
” In 1997 the Amsterdam Treaty promised to “enshrine” the public’s right of access to EU documents but in 2001 we only got half the cake. If the Council and the Commission get their way we will be left with just a few crumbs [small fragments]. Access to documents is the life-blood of a healthy, vibrant, democracy which encourages informed consent and dissent. Instead the Council wants an unaccountable democracy bereft of content and meaning.”
EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Statewatch challenges Council secrecy on access to EU documents on the revision of the Regulation: Letter from the Council refusing access to three documents concerning the Council’s discussions on revising the Regulation on access to EU documents (pdf) in response a: Confirmatory application by Tony Bunyan, on behalf of Statewatch (pdf)
The Council had hidden three crucial documents and claimed that access could not be given because 1) It would “prejudice Council’s capacity to conduct frank and candid discussions”. In other words to meet in secret as a legislature under the so-called “space to think” (under Article 4.3 of the Regulation on acces to documents) see: The case for the repeal of Article 4.3 2) The Council then claims that there was an “absence of any element suggesting an overriding public interest” in dislcosure – it is hard to think of an issue on which the public’s right to know what is being discussed manifestly outweighs the need for secrecy. 3) The Council concludes by saying that access may to given “after the the final adoption of the act” – subject still to Article 4.3 para 2.
Tony Bunyan, Statewatch Director, comments:
“The notion that the wish of a legislature to meet in secret (by failing to release the documents being discussed) outweighs the public interest of the citizens on such a fundamental issue, namely the right to know what is being discussed and proposed in a legislative process in order to know and allow for public debate, has no place in a democracy worthy of the name.”
ECJ: ACCESS TO DOCUMENTS: Press release: General Court ruling on In ‘t Veld vs Council strengthens transparency in EU (pdf):
“Sophie in ‘t Veld, MEP (ALDE, NL), welcomes today’s ruling of the General Court of the EU on her request for access to the opinion of the Council Legal Service on the so called EU-US ‘Swift agreement’ on the transfer of bank data. “I am pleased the Court largely supported our claim, and puts the interest of the citizen before institutional interests. The Council will have to publish the document, with the exception only of those parts that could reveal the directives that might reveal the strategic objectives pursued by the EU in the negotiations, or the specific content of the agreement envisaged. It is a step forward for transparency in Europe, that the General Court makes it clear that negotiations on international agreements are not automatically exempt from EU transparency rules”.
and European Court of Justice: Advocate General Opinion: Full-text: Sophie in ’t Veld v Council of the European Union (pdf)
EU: ECJ: Access to information – MEPs’ assistants: Judgment (pdf):
“Annuls the decision of the European Parliament of 12 February 2010 in so far as it refuses to grant Kathleen Egan and Margaret Hackett the access requested to the public registers of assistants to former members of the European Parliament”
EU: Council of the European Union: Access to documents annual report: Tenth annual report of the Council on the implementation of Regulation No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (pdf)
ECJ: ACCESS TO EU DOCUMENTS REGULATION: Opinion of Advocate General Cruz VILLALÓN delivered on 1 March 2012 Case C-135/11 P IFAW Internationaler Tierschutz-Fonds gGmbH (pdf): “Right of access to documents of the institutions – Documents originating from a Member State – Objection of the Member State to disclosure of the documents – Scope of the institutions’ review of the reasons for the Member State’s objection” and “I propose that the Court should: Allow the appeal in part by upholding the second part of the second ground of appeal, alleging misinterpretation of Article 4(5) of Regulation (EC) No 1049/2001.”
EU: Revising the Access to documents Regulation saga – The beginning of the endgame
– “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)
EU-ACTA: Maladministration complaint against the European Parliament (FFII, link): “I just filed a maladministration complaint with the Ombudsman against the European Parliament for systematically lying about the existence of documents”
EU: Council of the European Union: Transparency – Historical Overview (1992 – 2010) (pdf). Useful summary of access to Council documents measures and court cases.
3 October 2011: EU: Analysis: Europe’s secret international negotiations violate EU law (pdf) by Professor Deirdre Curtin, Professor of European Law, Director of Amsterdam Centre for European Law and Governance, University of Amsterdam:
“Given the way that the EU is rapidly evolving in institutional and political terms the time has come for the issue of classified information in the EU to be confronted head on. The EU needs a general law on classification of documents applying to all the institutions and organs of the EU and adopted according to the normal legislative procedure.”
Background see Decision by made the leaders of the politcal groups not by the parliament as a whole: Decision of the Bureau of the European Parliament of 6 June 2011 concerning the rules governing the treatment of confidential information by the European Parliament (pdf)
EU Ombudsman: International Right to Know Day: Ombudsman calls for more pro-active transparency in the EU (pdf): ““I am concerned about the consistently high number of transparencyrelated complaints I receive every year. Many EU institutions are still too reactive in their approach to public access and some even seem to be defensive in their thinking.”
EU: European Commission: Report from the Commission on the application in 2010 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (pdf). The Commission’s annual report on public access to its document again makes very pitiful reading:
- a) 26.42% of requests for documents are refused under Article 4.3 of the Regulation – to protect the “space to think”, to keep secret documents under discussion;
- b) the number of applications for documents has risen from 5,055 (2009) to 6,127 which is no at all surprising as the Commission’s public register of documents is pathetic.
- c) There are just 5,109 user sessions per month on the Commission’s public register of documents – by way of comparison the Statewatch European Monitoring and Documentation Centre (SEMDOC) has 12,600 user sessions a month. This is primarily because the Commission’s public register contains less than 10% of the documents it produces or receives and may of these do not give access to the document itself.
It will be recalled that Statewatch lodged a successful complaints with the European Ombudsman on the Commission’s failure to maintain a complete register of documents under Article 11 of the Regulation on public access to documents: See: : Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf)
EU: ACCESS TO DOCUMENTS: European Court of Justice: The Court of Justice partially sets aside the judgment of the General Court and partially annuls the decisions of the Commission refusing access to certain of its internal documents relating to a closed merger procedure (Press release) and Full-text of judgment (pdf): Concerning Article 4.3 of the EU Regulation on public access to documents: “In order to justify its refusal, the Commission must set out the specific reasons supporting the conclusion that their disclosure would seriously undermine the decision-making process of the institution and the protection of legal advice”
EU: Member States to be bound by new security rules, Parliament adopts same restrictions
“The 27 EU-ambassadors in Brussels have agreed to make internal security rules for information binding law in the member countries. The 15 top members of the European Parliament have decided on similar rules. Information ”disadvantageous” to the EU shall not be disclosed to the public.”
EU: TO DOCUMENTS: EU states object to transparency in law-making (euobserver, link): The Council of the European Union has decided to appeal against the decision of the European Court of Justice in the -Info case concerning the publication of Member States position and the “space to think” in secret under Articel 4.3 of the Regulation on to EU documents:
“An EU source told EUobserver that potentially the positions of states on all subjects and discussions at the level of working group could be opened up for public scrutiny: “The decision-making process as established, the ‘space to think’ must be protected. This is what is at stake…. one source close the matter told EUobserver that a full 20 member states are backing the legal action.”
Tony Bunyan, Statewatch Director, comments:
“The Council are trying to bully the European Court of Justice by weight of numbers to protect their so-called “space to think” because their argument is patent nonsense. The Council is a legislature together with the European Parliament when adopting EU measures – a “legislature” in a democracy worthy of the name cannot meet in secret. Yet this is the practice the Council wants to perpetuate.”
See: Full-text of ECJ judgment (pdf) and The case for the repeal of Article 4.3
European Court of Justice: ACCESS TO EU DOCUMENTS REGULATION: Judgment: Judgment – fulltext (pdf): The applicant, Mr Ciarán Toland, applied to the Parliament for access to the 2006 Annual Report of its Internal Audit Service, including the 16 audit reports and was refused access. The General Court of the ECJ ruled that it: “Annuls the decision of the European Parliament of 11 August 2008, Reference No A (2008) 10636, in so far as it refuses access to Report No 06/02 of the Internal Audit Service of the Parliament of 9 January 2008 entitled ‘Audit of the Parliamentary Assistance Allowance’;”
EU: ACCESS TO DOCUMENTS: Council of the European Union: Public access to documents – Confirmatory application No 09/c/01/11 (pdf). A perverse decision by the Council to refuse access to the Opinion of the Council Legal Services concerning the Council’s use of powers under the Comitology Regulation (implementation). Four Member States – Denmark, Finland, Netherlands and Sweden voted against the refusal of access to the document as it “does not contain particularly sensitive information” and they did not agree with “the interpretation of the Turco case-law”. In this case the European Court of Justice resolved that the opinions of the Legal Services should be accessible by the public where they relate to the “legislative process”. The Council claims that the document, concerning the comitology process, “is not related to a specific legislative procedure or other decision-making process” – which it transparently is.
EU: NEW COMITOLOGY PROCEDURES: Regulation laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (pdf). Introduces two new procedures: the “examination procedure” or “advisory procedure”.
See critique of Article 10 which severely limits the information to be publicly available: EU: Deepening the democratic deficit: the failure to “enshrine” the public’s right of access to documents (pdf) by Tony Bunyan.
EU: Corporate Observatory Europe: European Commission sued for giving privileged access to corporate lobby groups in EU-India trade relations (pdf):
“On 15 February, Corporate Europe Observatory launched a legal action1, suing the EU’s executive in the EU General Court for withholding documents related to the EU’s free trade talks with India. The Commission is accused of discriminating in favour of corporate lobby groups and of violating the EU’s transparency rules.
The case concerns 17 documents including meeting reports, emails and a letter, which the Commission’s trade department (DG Trade) sent to industry associations including BusinessEurope and the Confederation of the European Food and Drink Industry (CIAA). While these corporate lobby groups received full versions of the documents, the Commission only released censored versions to Corporate Europe Observatory, arguing that full disclosure would undermine the EU’s international relations.”
Statewatch Analysis: EU: Deepening the democratic deficit: the failure to “enshrine” the public’s right of access to documents (pdf) by Tony Bunyan.
In April 2008 the Commission opened up the process to amend the 2001 Regulation on access to EU documents – nearly three years on nothing has happened – all that has been agreed is a new set of “comitology” rules that will restrict access.
Statewatch Analysis: Case Law Summary: EU access to documents Regulation (142 pages, small pdf). Prepared by Steve Peers, Professor of Law, University of Essex:
“The following summary sets out systematically the case law of the EU Courts (the Court of Justice and the lower court, the General Court – previously known as the Court of First Instance) concerning the EU’s access to documents regulation (Reg. 1049/2001).”
EU sued for lack of transparency (European Voice, link): “Green groups take Council and Commission to court over access to documents and biofuel policy”
EU: European Commission: Report on the application of the Directive on minimum standards on procedures for granting and withdrawing refugee status (COM 465, pdf)
FREEDOM OF INFORMATION (FOI): Fringe Special: Overview of all FOI laws: 80 national FOIAs – 184 sub-national FOIAs – & 2 international FOIA (pdf) compiled by Roger Vleugels
EU-REGULATION on Access to documents: Aarhus-environment: EEB and Clientearth: Briefing (pdf)
EU: The European Union and State Secrets: a fully evolving institutional framework (European Area of Freedom Security & Justice, link):
“Many contemporary debates surround the issue of the treatment of confidential information and state secrets both in the United States and the European Union and questions have also been raised over the WikiLeaks phenomenon. It therefore seems timely to try to shed some light on the way confidential information is handled by the European Union institutions, especially since we now have the entry into force of the Treaties of the European Union, on the Functioning of the European Union and the now binding Charter of Fundamental Rights.”
EU: European Commission: Annual report for 2009: Regulation for public access to EU documents (pdf)
European Court of Justice: Two judgments limit rights of access to documents: Review of relationship between transparency and data protection more urgent after Court ruling on Bavarian Lager (Press release, pdf) and Refusal of access to documents concerning a procedure for reviewing State aid may be justified by the general presumption that the disclosure of those documents would undermine investigation activities (Press release, pdf)
European Data Protection Supervisor (EDPS) reaction: Review of relationship between transparency and data protection more urgent after Court ruling on Bavarian Lager (pdf)
EU: Council of the European Union: 8th Annual report for 2009 on the Regulation for public access to EU documents (pdf)
Sweden struggles with e-transparency (wobbing eu, link): “A draft law for access to electronically held information has caused a protest by the Swedish Union of Journalists. If the proposal comes through as it is, civil servants should deny access to electronic data when such access is found ”inappropriate”. E-transparency is seen as a grace, not as a public right.”
EU: New case taken to the European Court of Justice on access to EU documents: Case T-529/09 before the General Court – Sophie in ‘t Veld v. Council of the European Union (pdf). ALDE MEP Sophie in ‘t Veld’s case concerns access to the Council Legal Services’ Opinion on the EU-USA SWIFT Agreement. In the Turco case the ECJ decide that access to could given to the Opinion of the Legal Service concerning policy matters.
EU: Regulation on public access to EU documents: European Ombudsman finds that the European Commission “has no intention of trying to complete its registers” See: Ombudsman: Follow-up to Critical and further remarks: How the EU institutions: How the EU institutions responded to the Ombudsman’s Recommendations in 2008 (December 2009, see p35-36, pdf). In 2006 Statewatch lodged a complaint with the European Ombudsman against the European Commission for its failure to maintain a proper public register of documents as required under Article 11 of the Regulation on access to EU documents. The Ombudsman found there was a case of maladministration and that ““The Commission should, as soon as possible, include references to all the documents within the meaning of Article 3(a) that are in its possession in the register foreseen by Article 11 of this regulation, to the extent that this has not yet been done.” The Commission reject the Ombudsman’s Recommendation.
In compiling his Follow-up report the Commission was invited to comment on any progress and again refused to accept that it had any obligation to list references to all documents as it is required to do under Article 11 of the Regulation: President Barroso’s letter to the Ombudsman (pdf). The Ombudsman’s Follow-up Report comments:
“The Ombudsman recalls that during his inquiry, the Commission consistently argued that it was going to expand the scope of its registers and led the Ombudsman to believe that the problem was mainly a technical one (i.e., the absence of a harmonised data base for the registration of documents). The Ombudsman notes, with regret, that the Commission’s new argument suggests that it has no intention of trying to complete its registers.”
Tony Bunyan, Statewatch editor, comments:
“Public access to documents is the life-blood of democracy and EU public registers listing all documents provide a rich resource for public debate, discussion and participation. The Commission continued intransigence undermines the democratic process and is utterly contrary to the much cited principles of openness and transparency in the EU.”
Background: Statewatch Analysis & Postscript: Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf)
EU: European Ombudsman re-elected (European Parliament press release, pdf)
EU: Regulation on public access to EU documents: When the European Commission put forward proposals to amend the Regulation on access to documents in April 2008 it was assumed that the process, involving codecision by the Council of the European Union and the European Parliament, would be finalised under the Swedish Council Presidency by December 2009. However, there is little prospect of any agreement under the current Swedish Council Presidency as each of the three institutions have quite different positions on what changes should be made. Tony Bunyan, Statewatch editor, comments: “We have reached an institutional impasse.” See: A quick guide to the “state of play” on amending the Regulation
EU: Statewatch Analysis & Postscript: Statewatch wins European Ombudsman complaint against the European Commission over its public register of documents – but it refuses to comply (pdf) by Tony Bunyan:
“The Commission’s public register of documents is a travesty. Its rejection of the European Ombudsman’s Recommendations and failure to respond to the European Parliament’s Resolution is an instance of institutional intransigence which, in the interests of basic democratic standards, must not go unchallenged.
EU: European Commission: Annual report for 2008: Regulation on access to EU documents (pdf)
Annual Report Access to Information in Bulgaria, 2008 (link)
ACCESS TO EU DOCUMENTS REGULATION: 2008 Annual Report from the Council of the European Union (pdf)
EU: Access to Documents: Commission Secretary-General Staff Guide to public access to Commission documents (60 pages, pdf). See below for DG Trade Staff Guide
EU: ACCESS TO DOCUMENTS: Full-text of: DG Trade: Vademecum on access to documents, January 2009 (pdf).
Tony Bunyan, Statewatch editor, comments:
“This staff document exposes the myth of those who claim that the Commission is unable to list all documents on its public register. The internal rules are clear – with some understandable exceptions – all documents should be listed. The problem is that the Commission has failed to enforce its own rules and meet its legal obligations under EU Regulation 1049/2001.
If every time an EU institution does not like the rules and the law these are changed to accommodate them – as some are proposing – it will herald an era of uncertainty and confusion undermining democratic decision-making.”
EU: Council of the European Union: Annual report for 2008 on access to EU documents (pdf). The most popular area for requests in Justice and Home Affairs. Just over 73% of the documents listed on the Council register are accessible full-text. But, of course, the remaining 27% include many documents concerning measures under discussion. There has been an increase in the number of documents classified as “Restricted”, where disclosure would be “disadvantageous” to the interests of the EU or its member states – in 2008 there were 505 “Restricted” documents some 40% of which concerned justice and home affairs (around 200+).
European Court of Justice: Access to documents: Two interesting judgments from the Court of First Instance: Case T 121/05 (pdf) including rejection of reliance on “privacy” exception as regards the names of scientific experts advising the Commission and Case T 166/05 (pdf) comprehensively rejects the arguments for the “decision-making” exception, include “space to think”.
EU: European Court of Justice: Judgment on aviation security (Press release, pdf) and Full-text of judgment (pdf).The ECJ rules that “the annex to Regulation 622/2003 has no binding force in so far as it seeks to impose obligations on individuals.” The European Commission had failed to publish in April 2003 its implementing rules about what could and could not be taken on planes by passengers. This judgment was preceded by the Commission finally caving in on 8 August 2008: EU: Commission finally publish full decision on air travel passenger rules: Regulation laying down measures for the implementation of the common basic standards on aviation security (pdf)
EU: European Commission makes a “fishy” argument: Ombudsman urges Commission to correct error concerning fishing quotas (European Ombudsman, press release, pdf); Draft recommendation of the European Ombudsman in his inquiry into complaint 865/2008/OV against the European Commission (Full-text of Ombudsman’s Decision (link) and Commission’s response: Press release (pdf). The Ombudsman found that:
“it appears that the Commission’s error in the table of its Non-Paper No 3 was repeated in the Council documents.”
To which the Commission responded:
“Both the complaint and the Ombudsman’s analysis are based on a non-paper, which is an informal discussion document. In fact, non-papers are often used as the basis for discussion prior to the adoption of official proposals by Member States in Council. However, since non-papers are not official proposals, they cannot be the source of administrative errors.”
Tony Bunyan, Statewatch editor, comments:
“So a “non-paper, which is a “document” under the EU Regulation on access to documents, is not a “document” because it is not an “official proposal” even if it leads to an error in a “non-paper” being repeated in an official Council document.”
The EU Regulation on public access to documents (1049/2001) states in Article 3.a. that 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”, ie: a “non-paper” is a “document”.
EU: Regulation on access to EU documents: Statewatch press release: Proposal to extend the EU Regulation on public access to documents to include “freedom of information” requests (Press release: full-text, pdf): Statewatch has submitted a proposal to the Civil Liberties Committee (LIBE) of the European Parliament to make explicit the right to make “Freedom of information” requests for EU documents.
Tony Bunyan, Statewatch Director, comments:
“There is sometimes a debate about whether a system of freedom of information requests on a specific subject is better or worse than the EU system of public registers of documents and the right of access to them. This is a unnecessary debate because both are clearly needed to ensure the greatest possible public access to EU information/documents.
Think of going into a public library. Under FOI you go to the front desk and ask for books on the topic you are interested in and the librarian goes away to find them for you. Under the public register of documents system you go into the library yourself and wander around the shelves to find what you are looking for – often making unexpected discoveries and connections.
Both systems have their strengths, that is why they are complementary. If our amendment is accepted, and as long as the current definition of a “document” together with the obligation on EU institutions to provide public registers listing the documents held are maintained, then we could at last be on the road to the new era of openness that the EU has long promised.”
– European Ombudsman Decision: failure to establish proper register is “maladministration”
– European Parliament: calls on Commission to act on Ombudsman’s Decision
– European Commission – the custodian of EU law – refuses to comply
– European Commission reacts by trying to change the definition of a “document”
– Indications the Commission is creating new system to “vet” documents before they are placed on its public register
See: Ombudsman Decision Boosts Transparency in European Union, Says EFJ : “The European Federation of Journalists, the regional group of the International Federation of Journalists (IFJ) today welcomed the decision of the European Ombudsman against the European Commission for its failure to record on its public register all documents.”
HUNGARIAN CIVIL LIBERTIES UNION (HCLU): Case against the Office of the Prime Minister The Court of Appeal declared in its final judgment on 21 of January 2009, that the minutes of the government meetings are data of public interest. Unfortunately, much information won’t be available for the public.
Council of Europe: Council of Europe Adopts Second-rate Treaty on Access to Information: Civil Society Groups express disappointment, call for strong monitoring body (pdf)
Spain: Report claims right of access to information is not fully recognised
EU: ACCESS TO EU DOCUMENTS – FINLAND: Commission proposals would “constitute a backward step”: Ministry of Justice, Finland, Press Release (pdf)
“If adopted in the proposed form, the proposal, however, would be more restrictive than the current rules on access to documents. The Commission proposes to exclude some document categories totally from the scope of implementation of the Regulation. The Commission also proposes that documents be accessible to the public only if they are registered and meet certain technical requirements….
The Government finds that the regulation on access to documents has worked well on the whole and that there is no reason to change its fundamental principles. The Commission proposal would, if adopted as such, constitute a step backwards.”
and Opinion of the Grand Committee in the Finnish Parliament (pdf)
“The Grand Committee emphasises that if approved, the Commission’s proposal would lead to a major reversal of the Union’s transparency and the public’s access to documents. The proposal is thus in contradiction to goals that have been repeatedly affirmed by the European Council.
The Grand Committee considers it worrying and reproachable that the Commission has advanced in support of its proposal justifications that must be considered untrue and misleading. Such conduct is liable to weaken the Commission’s public credibility.”
EUROPEAN COMMISSION: Annual report on access to documents, 2007 (pdf). The low number of visitors to the Commission’s public register of its documents – only 39,013 over the full year, 3,251 per month – tells us that it is not seen as a useful source of documentation. Many, many documents are not listed and of those that are many do not give access to the text of the document. And this leads in turn to:
“The constant increase in the number of initial applications since the Regulation was adopted was again observed in 2007, when 4196 initial applications were registered by departments, 355 more than in 2006.”
The Commission’s failure to list all the documents its receives or produces is the subject of a Statewatch complaint to the European Ombudsman.
European Parliament: Draft Committee report on: The Annual Reports of the European Parliament, Commission and Council on public access to documents (Marco Cappato MEP, pdf)
Council of Europe: Convention on access to documents: European Parliamentarians call on Council of Europe To Redraft Substandard Convention on Access to Official Documents (Press release, pdf):
“Strasbourg, 6 October 2008: The Parliamentary Assembly of the Council of Europe (PACE) on Friday (3 October 2008) adopted unanimously a resolution expressing concern that the world’s first treaty intended to guarantee public access to information had significant flaws. In a rare step, PACE called for the Convention on Access to Official Documents to be redrafted.”
EU: Access to documents in the EU: When is a “document” not a “document”? (pdf) Analysis by Tony Bunyan.
The European Commission has put forward a number of changes to the Regulation on access to EU documents adopted in 2001. Controversially it proposes to change the definition of a “document” which in turn affect which would or would not be listed on its public register of documents. Does this have anything to do with the fact that the European Ombudsman has just ruled that the Commission must abide by the existing definition of a “document” in the Regulation and that it must list all the documents it holds on its public register?
Freedom of Information: Updated, final version: Overview of all 86 FOIA Countries (pdf) by Roger Vleugels
EU-FOI: European Ombudsman Open Letter to Commissioner Wallstrom (European Voice) on access to EU documents:
“You defend the Commission’s new definition of “document” by explaining that documents drawn up by the institutions are documents as soon as they have been sent to their recipients or otherwise registered. But in fact, the Commission’s proposal does not say “sent to their recipients”, but “formally transmitted to one or more recipients” (my emphasis).”
FREEDOM OF INFORMATION: Atlanta Declaration and Plan of Action for the Advancement of the Right of Access to Information (pdf)
“We, over 125 members of the global access to information community from 40 countries, representing governments, civil society organizations, international bodies and financial institutions, donor agencies and foundations, private sector companies, media outlets and scholars, gathered in Atlanta, Georgia from February 27-29, 2008, under the auspices of the Carter Center and hereby adopt the following Declaration and Plan of Action to advance the passage, implementation, enforcement, and exercise of the right of access to information”
EU-ACCESS TO DOCUMENTS: Council capitulates and agree to give Mr Turco a document containing the Opinion of the Legal Service: New reply to the confirmatory application made by Mr Maurizio TURCO (1/02) following the judgment of the Court of Justice (Grand Chamber) in Joined Cases C-39/05 P and C-52/05 P (pdf)
MALTA-FOI: Citizens and NGOs convened for Freedom of Information forum (link)
EU: MAJOR VICTORY FOR ACCESS TO EU DOCUMENTS: COURT OF FIRST INSTANCE JUDGMENT ON ACCESS TO LEGAL OPINIONS – TURCO CASE:
“THE COURT AUTHORISES, IN PRINCIPLE, ACCESS TO LEGAL ADVICE GIVEN TO THE COUNCIL ON LEGISLATIVE QUESTIONS
The transparency of the legislative process and the strengthening of the democratic rights of European citizens are capable of constituting an overriding public interest which justifies the disclosure of legal advice…. The Court takes the view that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases transparency and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act.
As regards, first, the fear expressed by the Council that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole. ” (Court press release)
The Court’s judgment means that the Council (and the Commission) can no longer claim blanket refusals for the opinions of their Legal Services on legislative matters. The Court’s judgment is also interesting because it reasserted the principle of an “overriding public interest” in allowing disclosure.
Currently the Opinions of the Council’s Legal Service on legislative matters carries the following warning:
“This document contains legal advice protected under Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, and not released by the Council of the European Union to the public. The Council reserves all its rights in law as regards any unauthorised publication.” [BOLD emphasis in original]
– Press release
– Court judgment – full-text
– Turco press statement
EU: European Data Protection Supervisor: Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Press release plus Opinion, pdf)
EU: FOI-ACCESS TO DOCUMENTS: Statewatch Analysis June 2008: Proposal on access to documents: Article-by-Article commentary (pdf) Analysis of the Commission’s proposed changes to the Regulation on access to EU documents (1049/2001) by Professor Steve Peers, University of Essex.
Commissioner Wallströms hits back at critics: ”They can’t have read the text” (Wobbing. link). Report by by Staffan Dahllöf.
Tony Bunyan, Statewatch editor comments: “The idea that Statewatch, and Steve Peers who represented us at the hearing in the European Parliament on 2 June, had not read the text is sheer nonsense. We have worked on access to EU documents for over 15 years and we know how the current definition of a “document” works in practice – and it works fine. The only institution which does not like the definition is the Commission. In response to Statewatch’s complaint to the European Ombudsman, over its failure to put all its documents on its public register, the Commission President repeatedly rejected the definition of a document in the Regulation as being too wide”.
European Ombudsman, P. Nikiforos Diamandouros, called on the European Parliament (EP) to defend the European Union’s commitment to transparency and the citizens’ right of access to EU documents at a public hearing in the EP’s LIBE Committee (Civil Liberties, Justice and Home Affairs), the Ombudsman said: “The Commission’s proposals would mean access to fewer, not more, documents. This raises fundamental issues of principle about the EU’s commitment to openness and transparency.”
Press release (pdf) and Full-text of speech (pdf)
EU: UPDATE: Commission proposals to amend Regulation on access to EU documents: Proposed changes to the Regulation on access to EU documents – COM (2008) 229 final (pdf) with Explanatory Memorandum and annotated text. The text previously put online was the version circulated for the Commission meeting on 30 April – the version that emerged and was adopted contained a number of changes, including a different definition of a “document”. Comments on the definition of a “document” in the Commission proposal: Back to the age of the “dinosaurs”? by Tony Bunyan, Statewatch editor, who comments:
“The Commission does not like the current definition of a document so it is proposing to change it to severely limit its scope. The current definition of a document must be left unchanged.
Nor does the Commission like the current Article 11 obliging it to list “without delay” all documents on its public register – which since 2002 it has failed to do – so the new definition of a “document” would allow it to carry on only listing a fraction of the documents it produces and receives. Article 11 must not be changed and must be implemented by the Commission.
At a stroke the the new era of openness and transparency promised in the Amsterdam Treaty would be dealt a fatal blow and we will be back in the age of the “dinosaurs”. “
Note on “dinosaurs”: The forces for secrecy in the EU – were referred to by Mr Söderman, then the European Ombudsman, at a Conference in Brussels on 26 April 1999 as the “dinosaurs” – who under the cloak of implementing the Amsterdam Treaty wanted to turn the clock back so that the institutions could control what documents are released.
EU: FOI IN THE EU: Revised and Updated: Statewatch analysis of the proposed changes to the Regulation on access to EU documents by Tony Bunyan with additional comments from Steve Peers, May 2008.
EU: FOI IN THE EU: Should there be a Freedom of Information Act for the EU? (European Citizens Action Service,pdf) Brussels criticised on access to documents law (euobserver, link) The European Commission proposes to improve public access to documents of the EU institutions (Commission press release, pdf)
Tony Bunyan, Statewatch editor, comments:
“Mr Barroso says “the access to document rules are working well. These changes seek to improve the access to documents for European citizens”. While Commissioner Wallstrom says “Access to documents is an essential tool for democracy and now we want to improve it”.
The rules on access are not working well and these changes will takes us several steps backwards. For example, the Commission does not agree with the definition of a “document” in the Regulation, so it wants to change it. The Commission’s public register of documents is a joke so now it wants to change the rules. There would be a longer list of exceptions to refuse access, including mandatory exceptions where applications do not even have to be considered. And would leave in place the rule which allows the institutions to deny access to documents on measures about to be adopted in Brussels – a practice that would never be tolerated at national level.
The Amsterdam Treaty was agreed 11 years ago (1997) and was meant to herald a new era of openness and transparency – we only got half of the loaf and have been waiting for the other half, now the Commission wants to takes away some of this.”
See: Statewatch analysis of the proposals
– Viewpoint by Tony Bunyan: More openness or just a drop in the ocean? The need for Freedom of Information in the EU
– The right to know or the right to try and find out? The need for an EU freedom of information law, by Ben Hayes
– “Unaccountable Europe” by Tony Bunyan
Exclusive: Commission proposals to amend Regulation on access to EU documents: Statewatch analysis:
Tony Bunyan, Statewatch editor, comments:
“The scope of the Commission’s amendments and its consultation do not consider many of the fundamental questions posed by civil society and the European Parliament.
Perhaps the most crucial is the public’s right to know what is being discussed before it is adopted in Brussels – a practice that would never be tolerated at national level.
Moreover, two of the Commission amendments are highly retrogressive. The new definition of a document would mean that if an official does not register it then it is not a “document” – a recipe for abuse. And the obligation of institutions to give public access to the full text of documents would be limited to legislative measures – and not cover the hundreds of thousands of other documents produced and received.
The Amsterdam Treaty was agreed 11 years ago (1997) and was meant to herald a new era of openness and transparency – we are still waiting for this to happen.”
Documentation
– Adopted version: Explanatory Memorandum and Annotated text
– Penultimate version: Commission proposals – Consolidated text
– Penultimate version: Commission Explanatory Memorandum
– Penultimate version: Memorandum to the Commission
– Penultimate version: Table comparing current text to proposed changes
– Full background and documentation since 1993 is on the Statewatch Observatory: FOI in the EU
EU: Council of the European Union: Annual report on access to documents, 2007 (pdf). Worthy of note is the growth in the number of classified documents:
“350 (original language) sensitive documents were produced in the period concerned, 26 classified as “SECRET UE” and 324 as “CONFIDENTIEL UE”. Of these, 3 “SECRET UE” document and 61 “CONFIDENTIEL UE” documents are mentioned in the register, in accordance with Article 9(2) and Article 11(2) of Regulation No 1049/2001.”
Of the 350 classified documents produced during the year on 64 were listed on the Council’s register of documents.
In addition, applications were examined for access to 802 documents classified as “RESTREINT UE” – 35,3 % concerned European Security and Defence Policy, 28% Common Foreign and Security Policy CFSP and 25.5% Justice and Home Affairs.
The top issue for which documents where applied to the Council for access to was Justice and Home Affairs: 20,1 % in 2004 to 22,5 % in 2005 and 24,5 % in 2006, reaching 26,8 % in 2007.
Council of Europe ducks open government advocates’ calls for reform; adopts weak convention on access to information that falls short of international standards (freedominfo, link)
Council of Europe: Access to Information Convention: Seven Key Problems Remain in the Draft European Convention on Access to Official Documents (pdf)
European Ombudsman: NGOs can help EU institutions do their job better (pdf)
“The European Ombudsman, P. Nikiforos Diamandouros, has underlined the importance of non-governmental organisations (NGOs) in pointing out possible instances of maladministration in the EU institutions. Over the past ten years, the Ombudsman’s office has received almost 1 000 complaints from NGOs and associations. They included alleged maladministration concerning environmental projects, late payment for EU contracts, and lack of transparency in the EU institutions. Among the NGOs that complained were Statewatch, Corporate Europe Observatory, and the European Citizen Action Service (ECAS).”
EU: European Commission publishes Annual Report on access to documents for 2006 (pdf)
EU ACCESS TO DOCUMENTS: Speech by the European Ombudsman to the Civil Liberties Committee of the European Parliament (pdf)
EU-ECJ: Excellent opinion today by Advocate-General Maduro, calling for the Court to annul the Council’s refusal to hand over its legal service advice relating to the reception conditions directive: A-G Opinion on Turco case (pdf)
EUROPEAN OMBUDSMAN: Statewatch wins complaint against the European Commission (full-story and documentation) The European Ombudsman has declared a case of maladministration against Commission for its failure to produce a 2005 annual report on access to documents in 2006 and found it “especially deplorable” as these reports are “a key mechanism for accountability”.
The European Ombudsman’s Decision says that:
“In the Ombudsman’s view, the reasons given by the Commission to explain its failure, which refer to administrative and organisational constraints, do not show that there was an objective impossibility for the Commission to comply with its legal obligation (ultra posse nemo obligatur)” and
“The Ombudsman considers that the instance of maladministration revealed by the present inquiry is especially deplorable since the publication of reports is a key mechanism of accountability to, and communication with, European citizens. The Commission should set a good example to the many new Community Agencies which have recently been established by giving high priority in future to the timely publication of reports.”
This is the first of two complaints lodged by Statewatch against the Commission. Previously Statewatch won eight complaints taken to the European Ombudsman against the Council of the European Union.
EU: Statewatch lodges two complaints against the European Commission with the European Ombudsman (press release, full-text, pdf, 19 April 2007): – the Commission has failed to maintain a proper public register of documents with only a fraction of those produced listed; – the Commission failed to produce its annual report on access to documents for 2005 in the year 2006; – Statewatch says both are breaches of the Regulation and therefore cases of maladministration.
EU-OMBUDSMAN: Press release: Information concerning MEPs’ allowances should be publicly accessible (pdf) Ombudsman Recommendation (pdf) Malta Today – front page (pdf) Malta Today – article (pdf)
EUROPEAN COMMISSION-ECJ-API Case: Access to documents: Judgment – full-text (pdf) Court press release (pdf) Brussels journalists unhappy with ‘routine secrecy’ (euobserver, link) Statement from API (pdf):
“The CFI found that the Commission does not have to give access to pleadings before the oral hearing, but must disclose pleadings after the hearing unless it cites a specific reason as to why such a disclosure would prejudice its position before the Court.”
EU-EUROPEAN PARLIAMENT: Liberal group (ALDE) re-launches transparency campaign on access to documents. Marco Cappato MEP said:
“Many documents are not on the official registers, information is often not fully available or difficult to find whilst internal procedures in some institutions are hard to follow.”
“The Regulation should be revised to ensure the principle of full access to all documents. It is untenable that the Council, which is the EU co-legislating body, still denies full access to documents discussed in its working groups, such as amendments proposed by Member States representatives, positions and voting records or legal opinions which makes it impossible to follow its decision-making process.”
“The Commission too should keep its register up to date and complete, while the EP should further improve the publication of its activities, such as video-streaming on the internet of its committees’ debates and enhanced transparency of first-reading agreements”.
He has drafted a response to the Commission’s Green Paper to be discussed in the Committee on Covil Liberties (LIBE): Working document (pdf)
EU: Court of First Instance ruling on WWF case: EU secrecy trumps openness again (WWF press release, link) The Council of the EU has succesfully defended its decision not to release a paper concerning the WTO and the environment to the World Wildlife Fund. This was the first case which concerned the application of the exception for the EC’s ‘economic interests, etc.’ and following the Court’s judgment it appears that it is sufficient for a document to simply concern the EC’s external trade for the exception to apply. The CFI clearly also distinguishes between access to information and access to documents, clearly undermining the argument that there is no distinction between the two – see para 76 of the CFI judgment (full-text, link)
EU: Statewatch lodges two complaints against the European Commission with the European Ombudsman (press release, full-text, pdf – EMBARGOED until 12.00 on Thursday 19 April 2007): – the Commission has failed to maintain a proper public register of documents with only a fraction of those produced listed; – the Commission failed to produce its annual report on access to documents for 2005 in the year 2006; – Statewatch says both are breaches of the Regulation and therefore cases of maladministration. Tony Bunyan, Director of Statewatch, comments:
“The European Commission is not above the law it is the custodian of EU law, responsible for ensuring it is properly implemented. This makes it all the more reprehensible that under the Regulation on access to documents the Commission has failed to maintain a proper register of documents and failed to publish an annual report for 2005. 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. The European Commission must be called to account for its actions or rather its failures to act”
Statewatch Briefing Note on the Commission’s Green Paper on the Regulation on access to EU documents.
EU: European Citizens Action Service, Statewatch, International Federation of Journalists, European Environmental Bureau : Should there be an EU Freedom of Information Act? (pdf) Seminar, Brussels, Thursday 19 April 2007
EU: European Court of Justice rejects Sison appeal against denial of access to EU documents (Judgment in case C-266/05 P, 1.2.07, pdf). The European Court of Justice has rejected Professor Jose Maria Sison’s appeal against the EU Council’s decision to refuse access to the documents relating to his inclusion on the terrorist list. For full background see Statewatch’s “terror lists” observatory
Statewatch’s Observatory on EU Freedom of Information – Case Law now has a list and summaries of “Pending cases” in the Court of First Instance/European Court of Justice. As at the end of September there were 25 cases pending. Pending cases list
EU-NATO: Classified information:
- a) Exchange of EU classified information (EUCI) with third countries and organisations (8 September 2006)
b) EU: Council Decision adopting the Council’s security regulations (28 February 2001)
c) NATO: Security within NATO (17 June 2002) Thanks to FOI Advocates Network
EU: European Court of Justice: The Opinion on the Advocate-General in the case of Professor Sison (pdf) who is appealing to get access to the documents leading to him being placed on the EU terrorist list. The Advocate-General rejects his case.
Freedom of Information: The Manchester Declaration (pdf) Civil Society Organisations meeting in Manchester on the occasion of the 4th International Conference of Information Commissioners agreed this Declaration. It is signed by 28 NGOs.
EU: European Ombudsman issues critical report against the Council of the European Union which tried to hide documents from applicant: Press release (pdf) Full-text of decision (link). Having first denied the existence of more documents than admitted the Council claimed that due to a “clerical error” ten other documents not been located.
The right to know or the right to try and find out? The need for an EU freedom of information law, by Ben Hayes (pdf)
Spain: “Transparency and silence” report on freedom of information throws up alarming results
European Court of Justice (ECJ): For the first time since the Regulation on access to EU documents came into force in December 2001 an applicant has won a case in the ECJ against the Commission. The Court found that the Commission failed to examine and give reasons for each of the documents refused and failed to assess whether partial access could be given. This decision will help other applicants for documents as it is the Commission’s habit to simply refuse documents requested by citing a general exception to access without giving reasons of how this applies to each document: ECJ Press release (pdf)
EU: A small victory for openness: The European Commission has finally made available a full list of its expert groups (2004) (pdf) and a list of “Joint entities resulting from international agreements” (2004) (pdf). Press release from Jens-Peter Bonde MEP
UK:Freedom of information – Parliament’s Consitutional Affairs Committee. Concerns about the public sector’s readiness to comply with the new freedom of information law are today (7.12.04) raised in a report by the Constitutional Affairs Select Committee.The report, which provides a snapshot of public sector preparations, warns that with less than a month to go before some 100,000 public authorities are legally obliged to give the public a general right of access to information, preparedness for the new freedom of information (FoI) regime is patchy. 1) Press release 2) Full-text of report (pdf) 3) Full-text of the UK Freedom of Information Act (link) 4) Campaign for Freedom of Information (link)
EU openness: The EU’s Court of First Instance has decided that governments can veto access to documents originating from them and submitted to an EU institution (in this case the European Commission). Interestingly the applicant was supported by the Netherlands, Sweden and Denmark, while the Commission – in its refusal to give access – was supported by the UK. The Court’s judgement said: “the Commission was not required to explain why the Federal Republic of Germany had made a request under Article 4(5) of the Regulation, since there is no obligation on the Member States to state the reasons for such a request under that provision”. Judgement (link) (1.12.04)
Statewatch Observatory on EU Freedom of Information – Case Law: Updated (25.11.04)
(19.11.04) Council agrees levels of security co-operation with third States and international organisations (14400/04)
BUDVA DECLARATION: Declaration of Regional Seminar on Freedom of Information Budva, Montenegro, 9-10 September 2004. Participants in the Budva Regional Seminar on Freedom of Information discussed international standards for the right of access to information, in particular the legitimate exemptions to the release of information. The challenges of implementation of FOI laws were also discussed, including the need for training, awareness raising, litigation: Budva Declaration (pdf)
Denmark: Breakthrough in access to agricultural EU subsidies information: Denmark (link)
UNESCO have published a: “Comparative legal survey on Freedom of information”: UNESCO Survey (pdf)
European Court of Justice: Access to documents decision against the European Commission and the Council of the European Union: Press release
Building the new security regime – the EU-NATO-USA politico-military axis: EU agrees to exchange of classified documents on “crisis operations” including justice and home affairs issues: Report and documentation
EU annual reports on access to documents – still a very long way to go: Report
– less than 50% of Council documents available to citizens
– European Commission’s register of documents “a disgrace”
– speech by Tony Bunyan to the European Parliament
“It is ten years since the Code on access to Council and Commission documents was introduced in 1993 and it is six years since Article 255 in the Amsterdam Treaty allegedly “enshrined” the citizens’ right of access. Yet even now less than 50% of the contents of documents on the Council’s public register have been released and the Commission’s public register is absolutely useless. How much longer are we going to have to wait for freedom of information in the EU?”
EU cements deal with NATO on exchange of documents: Report
European Parliament: Public Hearing: EU transparency – access to documents: does it work? Programme
Transparency in the European Union still problematic: Report
Statewatch openness case leads to landmark decision – Council agrees to keep copies of all documents and to list them in “Outcomes” (Minutes): Report
European Journalists support Irish fight to maintain open government: Report
Irish Council for Civil Liberties condemn government changes to freedom of information law: Report (link)
On 12 February 2003 the Swiss Federal Council (government) submitted a draft for a new law on freedom of information to parliament. The text of the draft is available on:
http://www.ofj.admin.ch/themen/oeffprinzip/bot-d.pdf (german)
http://www.ofj.admin.ch/themen/oeffprinzip/bot-f.pdf (french)
European Ombudsman: Council tells student that legal opinion on openness should stay secret: Report
Mystery document appears on EU Council register: Report
“Secrecy and Openness in the European Union” by Tony Bunyan – a new case study from freedominfo.org: Press release
European Ombudsman calls on Commission to clarify data protection rules: Report
Denied EU document reveals issues of public interest: document refused on grounds it concerned the “campaign against terrorism” contains further far-reaching proposals on surveillance, particularly of immigrants, including: “preventive information gathering”: Report
European Ombudsman’s Annual Report: Report Sections on Statewatch’s cases against the Council of the European Union (the 15 governments) on access to documents: Statewatch (pdf)
European Ombudsman: EU Commission secrecy around Transatlantic Business Dialogue is “Maladministration”: Report (updated 18.7.02)
26 July 2000 – the day of the infamous “Solana Decision”- how did Mr Solana reply to a letter he had not received? Report
Statewatch complaints against the Council on access to documents goes before the European Parliament: Report
Very interesting site with lots of data on freedom of information in EU states:link
26 July 2000 – the day of the infamous “Solana Decision” – the Solana/Robertson exchange of letters: Report
European Ombudsman publishes code on administrative behaviour: Report
Council of the European Union disagrees on giving access to the public of positions taken by EU governments: Report
US government vetoes Statewatch access to EU-US agendas: Report
– Council of European Union says it has no choice but to back US veto
– Refusal of access follows two successful complaints to the European Ombudsman
– Decision would exclude from access any document on international policy vetoed by third parties
New EU Regulation on access to documents: Report
– the first major problem is going to be what will, and what not, be on the public registers of documents
– the second will be the exclusion of “internal documents”
– the third will be the right of “third parties” (like the US) to veto access to EU documents
European Ombudsman calls on the European Parliament to take action on the Council’s failure to release documents to Statewatch: Report (5.12.01)
European Commission publishes new security rules before its rules on the public’s right of access to its documents: Report
The new Regulation of public access to EU documents comes into operation on 3 December 2001
1.The new Regulation (1049/2001) on access to documents (pdf file)
2. Council’s new Rules of Procedure (adopted 29 November)
3. European Parliament report amending its rules of procedure (adopted 13 November)
The UK House of Lords Select Committee on the European Union has produced a report on the “Solana Decision” of July 2000: House of Lords report
European Parliament takes Council to court for failure to consult over new (NATO) classification code – the “Solana Two Decision”:Report Full-text: EU/NATO: Security Regulations (Word 97) Security Regulations (pdf)
Statewatch wins new complaints against the Council of the European Union: European Ombudsman decides access must be given to the agendas of the EU-US Senior Level Group and the EU-US Task Force: Decision
Statewatch launches Freedom of Information in the EU site with all the background news and documents on access to documents plus a new Observatory on case law: FOI
EU openness: Heidi Hautala MEP claims victory in secrecy court case: Opinion of the Advocate General
The first seminar on the new Regulation on access to EU documents is being organised by the Academy of European Law in Trier, Germany and Statewatch: Seminar
Final version of the new EU code of access to documents: Netherlands court case withdrawn & European Parliament negotiating over access to classified documents: New Regulation
Final “compromise” text adopted by the European Parliament (3.5.01) and the Council of the European Union (14.5.01): Full-text
Postcript to the vote on the new code of access to EU documents – “Call for an Open Europe” to continue: Postcript updated 16.5.01
European Parliament votes in favour of “deal” with the Council on access to EU documents – campaign for an open and democratic Europe to continue: EP vote
Leading civil society groups send “Open letter” to all MEPs asking them to reject the “deal” on access to EU documents on 3 May: “Open letter”
“Call for an Open Europe”: over two hundred sign up
Support for openness: from 72 individuals and organisations across the EU
Full-text of Commission’s original proposal and the amendments to it by the European Parliament (to be discussed on 2-3 May) which represents, when combined, the proposed new Regulation on public access to EU documents: Observatory
“Brussels stitch-up” agreed
– Council, Commission and EP Committee agree “compromise/common text”
– Civil society groups reject “deal” between Council and European Parliament
Press release: “OPEN LETTER from civil society on the new code of access to documents of the EU institutions” (23.4.01)
New code on access to EU documents: “Brussels stitch-up” on the cards Updated 23 April
– Council and EP rapporteurs agree “common text”
– Civil society groups reject “deal” between Council and European Parliament
New Council draft code undermines current rights of access: New draft
European Federation of Journalists call for an end to secret negotiations and a “fresh start” on the new code of access to EU documents: “Fresh start”
Validity of secret “trilogue” meetings over new code of access to EU documents thrown into question: Report
Council Decisions: 1) gives EU member states a “veto” over access to documents 2) new Solana classification code will “contaminate” access: Decisions
Hautala v. Council: Partial access to documents: News online
Statewatch wins two new complaints: European Ombudsman decision breaches “space to think”: European Ombudsman
“UK parliament report slams the “Solana Decision” on access to EU documents: Report
“Trilogue” talks start again – call by civil society groups for an end to secret negotiations: Trilogue II
Article by Tony Bunyan, Statewatch editor, in European Voice: No freedom of information in the EU
“Trilogue” discussions collapse with no agreement – 1st May deadline will not be met: Trilogue
Seminar on access to EU documents, 27 February, Brussels: Seminar
ECAS press release on new code of access: EU transparency in muddied waters
New draft shows how far the EU is from real freedom of information: New draft
EU institutions to hold “trilogue” meetings to try and sort a “compromise” on their different versions of the new code of access: trilogue (news, 22.1.01)
The European Federation of Journalists and Statewatch have launched a “Call for an Open Europe” on access to EU documents which includes “Our code”, a code of access to documents for civil society: “Call“
New draft (dated 18.12.00) of Council’s common position leaves the incoming Swedish Presidency with a difficult job: New draft
Chair of EP Committee attacks Council’s draft common position on access: Watson letter
“Solana Decision” extended to cover justice and home affairs, trade and aid: “Solana Two Decision”
Survey shows which EU governments back openness, which do not: Openness survey (29.11.00)
Statewatch News online: “Solana Decision” back on the agenda (27.11.00)
European Parliament “has ignored civil society” plus full-text of the report adopted: Report
European Federation of Journalists publishes “Essays for an Open Europe“, which argue that civil society needs to join in the debate on access to EU documents: Essays
UK House of Commons Select Committee on European Scrutiny report on access to EU documents: Report (21.11.00)
European Parliament adopt report on access to EU documents – but what happened to citizens’ rights?: EP vote, where now?
European Parliament to vote on report on access to documents on Thursday. Full list of amendments, voting list and analysis: EP vote
European Parliament report on access to EU documents in need of radical amendment – parliament to adopt first reading position on Thursday in Strasbourg: Report, critique and documents
Reports on EU access to documents carried on Statewatch News online – please check this page for the latest news:
The European Parliament has formally decided to take the Council of the European Union to court over the “Solana Decision”: Green/EFA press release Council offer deal to head off court action by EP: Compromise
deal
A detailed analysis by Statewatch shows that the European Commission and the Council want less access to documents than at present: Analysis
Germany and France lead fight for more secrecy by EU governments and UK sits on the fence – Council’s position on access to documents even worse than the Commission’s: Council
Sweden Swedish government decided (28.9.00) to back Netherlands court case
Finland : the Finnish government to back the Netherlands in their court case
Netherlands to take EU to court the Netherlands government decides (22.9.00) to take the Council of the European Union to court over the “Solana Decision”
EP Court action The European Parliament votes to take to take the Council to court over the “Solana/NATO Decision
Press release: Green/EFA group in EP
Opinion “Opinion” article in the Irish Times (23.9.00)
NATO letter Snub to European Parliament reveals more NATO demands
MEPs demand action EP decision with full-text documents
Solana’s coup imposes EU security state: EU governments adopt the “NATO/Solana” amendments to the Decision on public access to documents (14.8.00) and it came into effect on 23 August:
Text of the Decision
Analysis The 1993 Decision as now amended by the Decision of 14 August 2000
Classified documents Council Decision of 19 December 1999 overturned
International Federation of Journalists: “Journalists condemn “Summertime Coup”: IFJ
The UK parliament issues critical report on Commission’s proposal: Report
Background document to “Solana Decision” released: Council Security Plan
EP’s position on access: 1st reading report Statewatch proposed amendments to it
Analysis of the Commission and Council’s position on new code of access to EU documents which shows that both institutions want more secrecy and less access than at present: Analysis
Text of speech by Tony Bunyan, Statewatch editor, to the “hearing” in the European Parliament on 18 September 2000 on the new measure on public access to EU documents: Talk
Netherlands to take Council to court over “Solana Decision” Netherlands MEPs demand action on “Solana/NATO” Decision, calls for the European Parliament to take the Council to court: EP to take legal action?
Amendments to the 1993 Decision on public access to documents agreed by “written procedure” on 14 August in advance of the Amsterdam Treaty measure: see Statewatch News online: New access decision For background to the Decision see: Solana coup
The Commission has circulated a revised version of its proposal for public access to documents which contains a significant change from the original: Revised Commission proposal 22.2.00
NEW STATEWATCH COMPLAINTS TO THE EUROPEAN OMBUDSMAN OVER ACCESS TO EU DOCUMENTS
Statewatch has taken two new complaints to against the EU Council of Ministers over access to documents to the European Ombudsman: Press Release 10.7.00
NEWS, DEVELOPMENTS & DEBATES
Statewatch’s suggested amendments to the Commission’s proposal on the public’s right of access to EU documents: Amendments
Online debate organised by Die Zeit between Tony Bunyan, Statewatch editor, and Mary Preston, of the European Commission, on the proposed regulation on public access to EU documents: The debate
The European Environmental Bureau (EEB), which represents 135 environmental citizens organisations, has prepared a critique of the Commission’s proposal, see: EEB
The “debate” between Mr Soderman and Mr Prodi: Mr Soderman/Mr Prodi
THE NEW PROPOSED REGULATION ON PUBLIC ACCESS TO DOCUMENTS
Regulation of public access to documents adopted by the Commission on 26 January: Commission proposal for a regulation on public access to documents
Second draft of Commission’s Regulation leaked to Statewatch: 29.11.99
First draft of Commission’s Regulation: 22.10.99.
THE EUROPEAN COMMISSION’s UNPUBLISHED CONSULTATION PAPERS ON THE PROPOSED REGULATION
The two drafts of the Commission’s unpublished “communication”, dated 22.1.99 and 23.4.99
THE CURRENT CODES OF ACCESS TO DOCUMENT FROM THE COUNCIL and COMMISSION which were adopted in December 1993
The current Codes governing access to documents were adopted in December 1993. Their operation has been greatly improved by challenges in the Court of Justice and complaints to the European Ombudsman by NGOs, MEPs, journalists and academics:
The Code used by the Commission: Commission code
The Code used by the Council: Council code
Statement by the European Federation of Journalists on the proposed regulation: EFJ
Statewatch analysis of the proposed measure: Statewatch analysis
Regulation on security of EU information (2022 proposal)
For an analysis of this proposal, see: The proposal on security of EU information: transforming the “bubble” into a “fortress”? by Emilio de Capitani.
Note: further documentation is available in the Council’s register of documents.
Council Security Committee: outcomes of proceedings (meeting minutes)
- 7 July 2022 (Council doc. 11228/22, LIMITE, 18 July 2022, pdf)
- 8 June 2022 (Council doc. 10136/22, LIMITE, 22 June 2022, pdf)
- 26-27 September 2022 (Council doc. 12913/22, LIMITE, 12 October 2022, pdf)
- 26-27 October 2022 (Council doc. 14593/22, LIMITE, 23 November 2022, pdf)
- 16 November 2022 (Council doc. 16162/22, LIMITE, 16 December 2022, pdf)
- 7-8 December 2022 (Council doc. 16250/22, LIMITE, 20 December 2022, pdf)
- 3-4 May 2023 (Council doc. 9200/23, LIMITE, 1 June 2023, pdf)
- 4-5 July 2023 (Council doc. 11683/23, LIMITE, 24 July 2023, pdf)
Council Security Committee opinions
- Opinion of the Council Security Committee on the proposal for a Regulation on information security in the institutions, bodies, offices and agencies of the Union (Council doc. 10091/22, LIMITE, 13 June 2022, pdf)
- Projet de règlement du Parlement européen et du Conseil relatif à la sécurité de l’information dans les institutions, organes et organismes de l’Union – Avis du Comité de sécurité du Conseil (Council doc. 10231/22, LIMITE, 14 June 2022, pdf)
Discussion paper
- Proposal for a Regulation of the European Parliament and of the Council on information security in the institutions, bodies, offices and agencies of the Union – Discussion paper on the main issues regarding governance (Council doc. 8453/1/23 REV 1, LIMITE, 26 June 2023, pdf)
Lists of working papers
- Working papers examined by the Council Security Committee, CSC(IA) and SAB during the first semester of 2022 (Council doc. 10693/22, 1 July 2022, pdf)
- Working papers examined by the Council Security Committee, CSC(IA) and SAB during the first semester of 2023 (Council doc. 11023/23, 4 July 2023, pdf)
Key texts/links
Statewatch
Resources on public access to EU documents
Regulation 1049/2001/EC – key texts
- Regulation 1049/2001/EC
- Council’s Rules of Procedure pdf)
- Decision on public access to European Parliament documents
- Rules of Procedure of the European Parliament
- European Commission Rules of Procedure on access to documents
- EU-NATO Security Regulations (pdf); Amendment, doc 5239/1/04, April 2004: Amendment (pdf)
- European Ombudsman code on administrative behaviour: Report
Regulation 1049/2001/EC – implementation reports – Commission
- Commission implementation report for the year2013 (pdf) and see:Annex – statistics (pdf)
- Commission implementation report for the year 2012 (pdf)
- Commission implementation report for the year 2011 (pdf)
- Commission implementation report for the year 2010 (link)
- Commission implementation report for the year 2009 (pdf)
- Commission implementation report for the year 2008 (pdf)
- Commission implementation report for the year 2007 (link)
- Commission implementation report for the year 2006 (link)
- Council implementation report for the year 2005 (13354/1/06, 28 September 2006)
- Council implementation report for the year 2004 (8896/05, 12 May 2005)
- Commission implementation report for the year 2004 (COM (2005) 348, 29 July 2004)
- Council implementation report for the year 2003 (8036/1/04, 21 April 2004)
- Commission implementation report for the year 2003 (COM (2004) 45, 30 January 2004)
- Council implementation report for the year 2002 (7957/03, 14 May 2003)
- Commission implementation report for the year 2002 (COM (2003) 216, 29 April 2004)
– Commission Green Paper on access to documents (preliminary version, April 2007)
Regulation 1049/2001/EC – implementation reports – Council
- Council implementation report for the year 2012 (pdf)
- Council implementation report for the year 2011 (pdf)
- Council implementation report for the year 2010 (link)
- Council implementation report for the year 2009 (link)
- Council implementation report for the year 2008 (link)
- Council implementation report for the year 2007 (link)
- Council implementation report for the year 2006 (link)
- Council implementation report for the year 2005 (link)
- Council implementation report for the year 2004 (link)
- Council implementation report for the year 2003 (link)
- Council implementation report for the year 2002 (pdf)
Biennial reports (former legislation)
– Code of access (1993)
– Third report on the implementation of Council Decision 93/731/EC on access to Council documents (1998-1999)
– Second report on the implementation of Council Decision 93/731/EC on public access to Council documents (June 1998)
– First report on the implementation of Council Decision 93/731/EC on public access to Council documents (July 1996)
Public registers of documents of the EU institutions – links
Applying for EU documents – links
- How to obtain or apply for documents from EU institutions (Statewatch)
- Submit a request for access to EU Council documents
- European Parliament: guide to public access to EU documents
Historical archives of the EU:
- Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community: Full-text (link); This was amended to reflect changes efffected in Regulation 1049/2001on 22 September 2003 by Council Regulation (EC, EURATOM) No 1700/2003: Full-text (pdf)
Case law
The EU Court System and Freedom of Information
Compiled by Steve Peers, Professor of Law, Human Rights Centre, University of Essex
Background
The EU has two courts. The lower court, the Court of First Instance, deals with cases where individuals sue the EU institutions. Since most disputes over access to documents involve disputes between the institutions denying access to documents and individuals disputing legality of the decision, most of them are before the Court of First Instance.
The second EU court is the European Court of Justice. This Court hears appeals against the judgments of the Court of First Instance (by individuals, the EU institutions or Member States). It also hears cases where the EU institutions sue each other and cases between the EU institutions and the Member States, including for example cases where a Member State sues to annul an act of the institutions. Also, it answers questions about EU law referred from national courts. The European Court of Justice is assisted by Advocate-Generals, who release a non-binding but influential Opinion about how to decide each case before the Court’s judgment.
The Courts cannot order the EU institutions to release documents. Instead, they have the more limited power to annul an institution’s refusal to release them. This leaves the institution free to refuse the documents on other grounds.
In addition to issuing full judgments, the Courts can also issue orders, for example where an applicant has requested emergency measures, where they believe a case is inadmissible and so there is no need to rule on the merits of the argument (because, for instance, the applicant is out of time to sue), or where they are striking out a case because it has been settled.
Judgments of the Court of First Instance
1. Carvel v. Council Case T-194/94 [1995] ECR II-2765
Judgment: Court of First Instance
Intervenors: Denmark, Netherlands, European Parliament (for the applicant)
Background of applicant: journalist for UK newspaper
Subject-matter: documents relating to Council meetings
Winner: the applicant
Appeal: noneComment: This was the first case decided on the issue of access to documents. It established the principle that when an applicant requests a document covered by the ‘confidentiality’ exception in the 1993 rules, the institution has to balance its interest against the applicant’s and cannot refuse whole classes of documents automatically.
2. World Wildlife Fund v. Commission Case T-105/95 [1997] ECR II-313
Judgment: Court of First Instance
Intervenors: Sweden (for the applicant); France, UK (for the Commission)
Background of applicant: environmental NGO
Subject-matter: documents relating to infringement proceedings against a Member State for alleged breach of EC environmental law, which the Commission discontinued
Winner: the applicant
Appeal: noneComment: This was the first case concerning the Commission and access to documents. It established that the institutional rules on access were binding and could be relied upon by individuals against them. It also clarified the distinction between ‘mandatory’ and ‘discretionary’ refusals under the 1993 Decisions, stating that an institution could invoke a ‘mandatory’ and ‘discretionary’ exception simultaneously. Furthermore, it introduced the principle that exceptions from the rules have to be interpreted and applied strictly. Finally, it is the first case to interpret the exception relating to ‘inspections and investigations, etc.’. The applicant won because the Commission had not clearly explained how the documents fell into the exceptions from access.
3. Interporc (I) v. Commission Case T-124/96 [1998] ECR II-231
Judgment: Court of First Instance
Intervenors: none
Background of applicant: importer of goods from outside EC
Subject-matter: documents relating to Commission decision relevant to imports
Winner: the applicant
Appeal: noneComment: The Commission lost this case because it had not explained how the documents in question fell within the ‘court proceedings’ exception. This is the first case in which the Court stated that applicants did not have to show an interest to apply for documents.
4. Van der Wal v. Commission Case T-83/96 [1998] ECR II-545
Judgment: Court of First Instance
Intervenor: Netherlands (for the applicant)
Background of applicant: Dutch competition lawyer
Subject-matter: documents sent from Commission to national court in the context of competition law disputes
Winner: the Commission
Appeal: by Van der Wal and Netherlands (see Court of Justice cases below)Comment: The Court ruled that the ‘court proceedings’ exception only covered documents drawn up for the purposes of a specific case. However, the exception also meant that national courts had autonomy as to whether to release documents.
5. Svenska Journalistforbundet v. Council Case T-174/95 [1998] ECR II-2289
Judgment: Court of First Instance
Intervenors: Sweden, Denmark, Netherlands (for the applicant); UK and France (for Council) Background of applicant: Swedish journalists’ association
Subject-matter: documents relating to negotiation of Europol
Winner: the applicant
Appeal: noneComment: The Court ruled that the 1993 rules applied to ‘third pillar’ (justice and home affairs) documents. It also ruled again that an applicant did not have to show an interest to apply for documents. Finally, it suggested that the ‘public security’ exception cannot cover documents that only relate to negotiations on legislative texts.
6. Rothmans v. Commission Case T-188/97 [1999] ECR II-2463
Judgment: Court of First Instance
Intervenor: Sweden (for the applicant)
Background of applicant: Dutch subsidiary of multinational tobacco company
Subject-matter: documents in ‘comitology committee’ concerned with tax matters
Winner: the applicant
Appeal: noneComment: The Court ruled on the first time on the ‘authorship rule’ in the 1993 rules, which restricted their scope to documents ‘authored by’ the Commission or Council. It found that this rule was an exception which had to be interpreted and applied strictly. In this case, committees established to advise the Commission on exercise of its powers to implement legislation must be regarded as part of the Commission for the purposes of the rules.
7. Hautala v. Council Case T-14/98 [1999] ECR II-2489
Judgment: Court of First Instance
Intervenors: Sweden, Finland (for the applicant); UK, France (for the Council)
Background of applicant: Finnish Green MEP
Subject-matter: documents relating to Council guidelines on arms exports to third countries
Winner: the applicant
Appeal: by Council (see Court of Justice cases below)Comment: The Court ruled that the 1993 rules applied to ‘second pillar’ (foreign policy) documents. It also ruled that partial access to documents must be granted, except where this would cause excessive work for an institution. This case is the first one in which the Court interprets the ‘international relations’ exception. However, it ruled that where foreign policy documents are at issue, the Court can only review the Council’s decision to see if it has breached procedural rules or decided manifestly wrongly on the merits of the issue.
8. Bavarian Lager v. Commission Case T-309/97 [1999] ECR II-3217
Judgment: Court of First Instance
Intervenor: UK (for the Commission)
Background of applicant: German brewery wishing to sell its product in UK
Subject-matter: documents relating to infringement procedure against UK
Winner: the Commission
Appeal: noneComment: The Court ruled that a draft of a ‘reasoned opinion’ drawn up during an infringement procedure fell within the scope of the exceptions for ‘inspections, investigations, etc.’. However, it expressly ruled that it was not yet established that all documents relating to an infringement procedure fell into the scope of this exception.
9. Interporc (II) v. Commission Case T-92/98 [1999] ECR II-3521
Judgment: Court of First Instance
Intervenors: none
Background of applicant: importer of third-country goods
Subject-matter: documents relating to Commission decision on imports
Winner: both parties in part
Appeal: by Interporc (Case C-41/00 P, pending)Comment: The Court again intepreted the ‘court proceedings’ exception, clarifying that in all cases, it only covered documents drawn up for a specific court proceeding. Applicants can use the rules on access in addition to the EU courts’ rules of procedure to obtain documents. However, the rules do not extend to documents drawn up by third countries or member States, and there is no ‘higher rule of law’ that obliges the extension of the rules to such documents.
10. Kuijer (I) v. Council Case T-188/98 [2000] ECR II-1959
Judgment: Court of First Instance
Intervenors: none
Background of applicant: Dutch academic and lawyer
Subject-matter: documents regarding asylum situation in third countries
Winner: the applicant
Appeal: by Council (Case C-239/00 P, later withdrawn)Comment: The Court ruled that the Council had failed to consider partial access to the documents, which in part potentially fell within the ‘international relations’ exception. Also, some of the documents appeared to contain only descriptions and factual findings, not really falling under the exception. Finally, when deciding on the applicant’s confirmatory application for documents, the Council had failed to reply to the arguments which the applicant made when he applied for them.
11. Denkavit v. Commission Case T-20/99 [2000] ECR II-3011
Judgment: Court of First Instance
Intervenors: none
Background of applicant: Dutch agricultural company
Subject-matter: documents relating to Commission investigation into animal health in Netherlands
Winner: the Commission
Appeal: noneComment: The Court ruled that the ‘inspections, investigations, etc.’ exception covered the documents at issue. It also ruled that an institution may simultaneously invoke more than one exception from the list of ‘mandatory’ exceptions.
12. JT Corporation v. Commission Case T-123/99 [2000] ECR II-3269
Judgment: Court of First Instance
Intervenors: none
Background of applicant: UK importer of third-country products
Subject-matter: documents relating to Commission decision concerning imports
Winner: both the applicant and the Commission (largely the applicant)
Appeal: noneComment: The Court ruled that the Commission had failed to consider partial access to the documents, which in part potentially fell within the ‘inspections, investigations, etc.’ exception. Also, some of the documents appeared to contain only descriptions and factual findings, not really falling under the exception. The ‘authorship’ rule was also applied again, to exclude the application of the rules to documents authored by Bangladesh authorities.
13. Mattila v. Commission and Council Case T-304/99 [2001] ECR II-2265
Judgment: [not yet available on this site]
Intervenors: none
Background of applicant: Finnish individual
Subject-matter: documents relating to EU policy toward Russia and Ukraine
Winner: the Commission and Council
Appeal: Judgment appealed by plaintiff (Case C-353/01 P, pending).Comment: The Court ruled that the ‘international relations’ exception covered the documents at issue. It appears to limit the scope of its review in all cases where the ‘international relations’ exception applied. Also, it appeared to accept that in some cases an applicant has no right to partial access, where the remaining document would not be of any assistance.
14. BAT v Commission Case T-111/00 [2001] ECR II-2997
Judgment: Court of First Instance
Intervenors: none
Background of applicant: UK tobacco company
Subject-matter: documents from Commission committee on excise duties
Winner: the applicant
Appeal: no appealComment: In this case, the Commission was willing to grant partial access to minutes of its committee, but not full access, on the grounds that full access would reveal the position of the Member States on a disputed point concerning taxation of tobacco. Therefore the exception for ‘confidentiality of the institutions’ proceedings’ was applicable. However, the Court ruled for the first time that the private interest of an applicant in obtaining particular documents has to be considered if the institution is aware of it, and furthermore that when discussions on a topic had concluded, the institution no longer had any ‘confidentiality’ to protect.
15. Petrie v Commission Case T-191/99 [2001] ECR II-3677
Judgment: Court of First Instance
Intervenors: none
Background of applicant: Foreign-language lecturers in Italy
Subject-matter: ‘reasoned opinions’ of the Commission sent to Italy during infringement proceedings
Winner: the Commission
Appeal: no appealComment: The Court ruled that the exception for ‘investigations’ under the Commission’s rules covered reasoned opinions issued during infringement proceedings. It also ruled that Article 1 EU and Article 255 EC had no direct effect, and that Article 255 EC could not be used to interpret the prior rules of the Commission because that Article had no legal effect until new access rules had been adopted.
16. Kuijer (II) v. Council Case T-211/00 [2002] ECR II-485
Judgment: Court of First Instance
Intervenors: none
Background of applicant: Dutch academic and lawyer
Subject-matter: documents regarding asylum situation in third countries
Winner: the applicant
Appeal: no appealComment: The Court ruled that the Council had wrongly applied the ‘international relations’ exception, by failing to consider the effect in practice of releasing the relevant documents on the EU’s relations with specific third countries.
17. BAT v. Commission T-311/00 [2002] ECR II-2781
Judgment: Court of First Instance
Intervenors: none
Background of applicant: tobacco company
Subject-matter: preparatory scientific documents drawn up in the process of drafting proposed EC legislation on tobacco content
Winner: no need to adjudicate
Appeal: time for appeal still open
Comment: Most of the requested documents were supplied by the Commission during the proceedings. As a result there was no need to rule in this case, although the Commission was ordered to pay the plaintiff’s costs and certain costs of the Court due to its behaviour. The judgment makes clear that an institution’s assertion that requested documents do not exist can
be the subject of legal challenge, although in such a case there is a presumption that the institution’s claim is correct.
18. Messina v. Commission T-76/02 [2003] ECR II-3203
Judgment: Court of First Instance
Intervenors: none
Background of applicant: law lecturer
Subject-matter: documents concerning state aids
Winner: the Commission
Appeal: no appealComment: This was the first judgment concerning Regulation 1049/2001, rather than the 1993 rules of the Council and Commission. The dispute concerned Italian documents held by the Commission, and the Italians disagreed with their
release. The Commission therefore referred to Article 4(5) of the Regulation, allowing Member States to request that their documents not be disclosed. The Court ruled that the Commission had not committed a manifest error of assessment in agreeing with the Italian request; it did not rule expressly that Member State’s ‘requests’ are in all cases binding on the EU institutions.
19. Co-Frutta v. Commission T-47/01 [2003] ECR II-4441
Judgment: Court of First Instance
Intervenors: none
Background of applicant: Italian banana importers
Subject-matter: documents concerning implementation of common EU banana market
Winner: the Commission
Appeal: no appealComment: This case is likely to be the last case concerning the 1993 rules of the Council and Commission. The issue was the definition of the ‘authorship’ rule. The Court held that documents drawn up in the context of the banana market were national documents, not the Commission’s documents, and so not covered by the rules. It rejected the argument that documents drawn up by Member States in the context of the Commission’s decision-making constitute an exception to the authorship rule.
20. Turco v. Council T-84/03 [2004] ECR II-4061
Judgment: Court of First Instance
Intervenors: Sweden, Denmark, Finland (for applicant); UK, Commission (for Council)
Background of applicant: MEP
Subject-matter: Council legal service advice
Winner: the Council
Appeal: appealed by Turco (Case C-52/05 P and Sweden (Case C-39/05 P)Comment: The Court of First Instance ruled for the first time on both the ‘legal advice’ exception expressly set out in the 2001 Regulation, and on the ‘public interest override’ that applies to a number of exceptions in that Regulation. It interpreted the ‘legal advice’ exception broadly and placed the burden of proof regarding the ‘public interest override’ on applicants, ruling also that the override could not be invoked in the general interest of transparency.
21. IFAW v. Commission T-168/02 [2004] ECR II-4135
Judgment: Court of First Instance
Intervenors: Netherlands, Sweden, Denmark (for applicant); UK (for Commission)
Background of applicant: environmental NGO
Subject-matter: documents concerning declassification of protected environmental site
Winner: the Commission
Appeal: appealed by Sweden (Case C-64/05 P)Comment: The Court of First Instance unambiguously interpreted Article 4(5) of the 2001 Regulation to mean that Member States have a right to veto release of documents ‘drawn up’ by them.
22. Scippacercola v. Commission T-187/03 [2005] ECR II-1029
Judgment: Court of First Instance
Intervenors: none
Background of applicant: not known
Subject-matter: documents concerning cost-benefit analysis regarding Athens airport
Winner: the Commission
Appeal: no appealComment: The Court applied the ‘Member State veto’ rule, holding also that it applied to documents drawn up on behalf of a Member State and precluded any partial access.
23. Verein für Konsumenteninformation v. Commission T-2/03 [2005] ECR II-1121
Judgment: Court of First Instance
Intervenors: Bank für Arbeit und Wirtschaft AG
Background of applicant: consumer protection NGO
Subject-matter: documents concerning competition decision
Winner: the applicant
Appeal: no appealComment: The Court ruled that the Commission had issued a blanket refusal concerning a large file, without sufficiently reasoning its refusal as regards individual documents.
24. Sison v Council T-110/03, T-150/03 and T-405/03, [2005] ECR II-1429
Judgment: Court of First Instance (link)
Intervenors: none
Background of applicant: alleged terrorist
Subject-matter: documents concerning the designation of a person as a ‘terrorist’ by the EU
Winner: the Council
Appeal: by the applicant (Case C-266/05 P, pending)Comment: This was the first time that the Court ruled on the exceptions for documents concerning ‘public security’ and ‘international relations’ in the 2001 Regulation. It applied a conservative interpretation of these exceptions in order to justify refusal of access to the relevant documents.
25. Franchet and Byk v Commission T-391/03 and T-70/04, judgment of 6 July 2006
Judgment: Court of First Instance
Intervenors: none
Background of applicants: staff members allegedly responsible for irregularities concerning EC funds
Subject-matter: documents concerning investigations into the alleged irregularities
Winner: both sides in part
Appeal: the time for appeal is still openComment: This was the first time that the Court ruled on the exceptions for documents concerning ‘court proceedings’ and ‘inspections, investigations and audits’ in the 2001 Regulation. It applied and further developed the prior jurisprudence concerning these exceptions, and again interpreted the ‘public interest’ override narrowly (as in the ‘Turco’ case).
Orders of the Court of First Instance
1. Carvel v. Council Case T-19/96 [1996] ECR II-1519
Order: Court of First Instance
Intervenors: none
Background of applicant: see Case T-194/94
Subject-matter: see Case T-194/94This order concerns a further case against the Council brought by Mr. Carvel against the Council, withdrawn after the Council supplied various documents.
2. Berge v. Commission Case T-156/97 [1997] ECR II-2097
Order: Court of First Instance
Intervenors: none
Background of applicant: German magazine editor
Subject-matter: documents relating to GM foodsThis is an order withdrawing the case after the Commission furnished the requested documents.
3. Carlsen v. Council Case T-610/97 R [1998] ECR II-485
Order: Court of First Instance
Intervenors: none
Background of applicants: Danish individuals
Subject-matter: Council legal service opinions relating to legality of EC legislation adopted with the ‘legal base’ of Article 235 (now 308) EC
Winner: Council
Appeal: noneThe applicants wished to receive documents which they believed could assist them in a dispute before the Danish courts on the constitutionality of Danish membership of the EU. The President of the Court ruled that the mandatory exceptions permitted in the ‘public interest’ were not exhaustive, and that an exception for ‘the stability of the Community legal order’, including legal advice given by the institutions, also existed. The case was later withdrawn before judgment on the merits.
4. Elder and Elder v. Commission Case T-78/99 [1999] ECR II-Oct 13
Order: Court of First Instance
Intervenors: none
Background of applicants: UK nationals
Subject-matter: documents relating to VAT committeeThis case was discontinued after the Commission issued a reply to the confirmatory application. The Commission was obliged to pay the applicants’ costs, but the Court had to rule subsequently on the amount of costs when they were disputed.
5. Elder and Elder v. Commission Case T-178/99 [1999] ECR II-3509
Order: Court of First Instance
Intervenors: none
Background of applicants: UK nationals
Subject-matter: documents relating to VAT committeeThis case was discontinued after developments in the dispute, as was the later Case T-356/99 brought by the applicants.
6. Meyer v. Commission Case T-106/99 [1999] ECR II-3273
Order: Court of First Instance
Intervenors: none
Background of applicant: French farmer
Subject-matter: information relating to overseas association
Appeal: noneThe Court ruled that the 1993 rules do not extend to documents published in the Official Journal. Moreover, the applicant was to some extent requesting information rather than documents, and the rules only apply to access to documents.
7. Associazione delle cantine sociali venete v. EP and Ombudsman Case T-103/99 [2000] ECR II-4165
Order: Court of First Instance
Intervenors: none
Background of applicants: Italian association
Subject-matter: documents relating to wine distillation
Appeal: noneThe applicants were refused Commission documents and took their complaint to the Ombudsman. They were dissatisfied with later developments and so sued the EP and Ombudsman for failure to act. The Court ruled that the case was inadmissible because the Ombudsman was independent of the EP and had only limited functions.
8. Elder and Elder v. Commission Case T-36/00 [2001] ECR II-607
Order: Court of First Instance
Intervenors: none
Background of applicants: UK nationals
Subject-matter: VAT committee documents
Appeal: noneThe Court ordered the Commission to disclose copies of the disputed documents to the Court. This is the first such order, following amendments to the Court’s rules of procedure which allow it to see such such documents while withholding them from the applicants.
* Note: this case was later withdrawn (removed from the Court’s register on 14 May 2001)
9. Pitsiorlas v. Council and European Central Bank Case T-3/00 [2001] ECR II-717
Order: Court of First Instance
Intervenors: none
Background of applicant: Greek doctoral student
Subject-matter: agreement between Central Banks
Appeal: by applicant: Case C-193/01 P, pending (OJ 2001 C 200/51)The applicant had requested the document from both institutions and was refused by both. By the time the Bank refused the document, he was out of time to sue the Council, and the Court refused to extend the normal vtime-limit. So the case against the Council is inadmissible.
10. BAT v. Commission Case T-111/00 [2001] ECR II-Feb 21
Order: Court of First Instance (in French)
Intervenors: none
Background of applicant: tobacco company established in UK
Subject-matter: documents relating to excise tax
Appeal: noneThe Court ordered the Commission to disclose copies of the disputed documents to the Court.
11. BAT v. Commission Case T-41/00 [2001] ECR II-1301
Order: Court of First Instance
Intervenors: none
Background of applicant: tobacco company established in Netherlands
Subject-matter: documents relating to excise tax
Appeal: noneThe application was dismissed as inadmissible, on the grounds that the original applicant was a separate company.
European Court of Justice
1. Netherlands v. Council Case C-58/94 [1996] ECR I-2169
Judgment: European Court of Justice
Intervenors: EP (for applicant); Commission, France (for Council)
Background: government outvoted as regards access issues
Subject-matter: validity of 1993 Council Decision on access to documents, Code of Conduct on access to documents, clause in Council rules of procedure
Winner: CouncilComment: The Court ruled that at the time (before the Treaty of Amsterdam), the EU institutions were entitled to govern citizens’ right of access to documents by means of their internal decision-making rules, rather than by ‘constitutional’ legislation.
2. Van der Wal and Netherlands v. Commission Joined Cases C-174/98 P and C-189/98 P [2000] ECR I-1
Judgment: European Court of Justice
Opinion: Advocate General (link)Intervenors: none
Background of applicant: see Case T-83/96
Subject-matter: joined appeals from Court of First Instance judgment in Case T-83/96
Winner: the applicant and the NetherlandsComment: The Court ruled that the Court of First Instance had interpreted the ‘court proceedings’ exception too broadly in its judgment. In particular, the exception did not allow national courts to have full autonomy over the release of documents.
3. Hautala v. Council Case C-353/99 P [2001] ECR I-9565
Judgment: European Court of Justice
Opinion: Advocate GeneralIntervenors: Denmark, France, Finland, Sweden and UK (for applicant); Spain (for Council)
Background of applicant: see Case T-14/98 above
Subject-matter: appeal by Council against judgment in Case T-14/98 above
Winner: the applicant, dismissing the Council’s appealComment: The Court ruled that the rules aimed to give the widest possible access to documents and that applications concerned applications concerned access to information, not just documents. In that light, the rules must be interpreted to permit partial access to documents in all but exceptional cases.
4. Interporc II v Commission Case C-41/00 P [2003] ECR I-2125
Judgment: European Court of Justice
Opinion: Advocate General (link)Intervenors: none
Background of applicant: see Case T-92/98 above
Subject-matter: appeal by Interporc against judgment in Case T-92/98 above
Winner: the Commission, dismissing the appealComment: The judgment ruled against the appeal, on the grounds that there is no ‘higher rule of law’ that would invalidate the ‘authorship rule’ which limited the scope of the prior rules on access to Council and Commission documents (before Regulation 1049/2001).
5. Pitsiorlas v Council and ECB Case C-193/01 P, [2003] ECR I-4837
Judgment: European Court of Justice
Opinion: Advocate General (link)Intervenors: none
Background of applicant: see Case T-3/00 above
Subject-matter: appeal by applicant against order in Case T-3/00 above
Winner: the applicant, winning the appealComment: The judgment ruled for the appeal, on the grounds that the applicant had good reason to bring proceedings
after the deadline against the two bodies, given the complications of determining which was responsible for considering
the application.
6. Mattila v Council and Commission Case C-353/01 P [2004] ECR I-1073
Judgment: European Court of Justice
Opinion: Advocate GeneralIntervenors: none
Background of applicant: see Case T-304/99 above
Subject-matter: appeal by Mattila against judgment in Case T-304/99 above
Winner: the applicant, succeeding on appealComment: The judgment ruled for the appeal, on the grounds that the Council and Commission had given insufficient reasons.
7. Sison v. Council, Case C-266/05 P, opinion of 22 June 2006
Opinion: Advocate General (link)
Intervenors: none
Background of applicant: see Case T-110/03, etc., above
Subject-matter: appeal by Sison against judgment in Case T-110/03, etc. above
Winner: the Opinion suggests the defendant (the Council)Comment: The Opinion suggests an even more conservative interpretation of the exceptions for ‘international relations’ and ‘public security’.
Related research
Critical analyses
Statewatch
Public access to EU documents: critical analyses
The democratic accountability of the EU’s legislative approach (November 2012)
Statewatch “wins” complaint against the European Commission on public register of documents (January 2009)
European Parliament:Abolish 1st [and 2nd] reading secret deals – bring back democracy by Tony Bunyan (September 2009)
Proposals for greater openness, transparency and democracy in the EU by Steve Peers (October 2008)
FOI in the EU: When is a “document” not a “document”? by Tony Bunyan (September 2008)
Statewatch complaint against the European Commission lodged with the European Ombudsman in 2006 (November 2007)
Secret trilogues and the democratic deficit (September 2007)
Openness and transparency in the Council by Steve Peers (June 2006)
More openness or just a drop in the ocean? by Tony Bunyan (December 2005)
The right to know or the right to try and find out? The need for an EU freedom of information law by Ben Hayes (November 2005)
“Attacking the citizens’ right of access?”, by Steve Peers (December 2004)
Digital Government in the European Union: Freedom of Information Trumped by “Internal Security” by Deirdre Curtin (2003)
Secrecy and Openness in the European Union, by Tony Bunyan (2003), an online book detailing the history of access to documents in the EU, complaints to the European Ombudsman and the Court of Justice, and the struggles by civil society to get proper freedom of information
EU annual reports on access to documents – still a very long way to go (2003), speech by Tony Bunyan, Statewatch editor, to the European Parliament
Essays for an Open Europe (2000), three essays written by Tony Bunyan, Statewatch editor, Professor Deirdre Curtin, Professor of the Law of International Organisations, University of Utrecht and a member of the “Meijers Committee”, and Aidan White, Secretary-General of the European Federation of Journalists on the need for a new code to truly “enshrine” the citizens’ right of access to EU documents and to ensure that civil society knows what measures are planned before they are adopted and is able to monitor their implementation. Thousands of copies of the “Essays” have been mailed out and downloaded from the internet.
Access to EU documents (2008-15)
Statewatch
Observatory: the Regulation on access to EU documents: 2008-ongoing
with the following partners: European Federation of Journalists (EFJ), Corporate Observatory Europe (CoE) and European Citizens Action Service (ECAS).Updated 1 June 2015 
EU: Ombudsman opens investigation to promote transparency of “trilogues” (pdf, letter to the Council of the European Union) The European Ombudsman, Emily O’Reilly, has opened an investigation into the transparency of “trilogues” with a view to boosting transparent law-making in the EU. Trilogues are informal negotiations between the European Parliament (EP), the Council and the Commission aimed at reaching early agreements on new EU legislation. See: Statewatch Analyses: Secret trilogues and the democratic deficit (pdf) and Abolish 1st [and 2nd] reading secret deals – bring back democracy “warts and all” (pdf)
EU: Deadlocked EU transparency reform finds new impetus (euractiv, link): “The new European Commission must look again at the European Union’s deadlocked transparency regulation and push through long-delayed reforms, the EU Ombudsman, MEPs and a?ctivists have said.”
EU: Council of the European Union: EU Human Rights Guidelines on Freedom of Expression Online and Offline (46 pages, pdf) Drawn up by the Working Party on Human Rights (COHOM) for the Political and Security Committee (PSC). Tony Bunyan Statewatch Director, comments: “Interesting principles set out for the rest of the world which it would be good to see in operation at “home” in the EU”
“The right to freedom of expression includes freedom to seek and receive information. It is a key component of democratic governance as the promotion of participatory decision-making processes is unattainable without adequate access to information.” [emphasis added]
EU: Council of the European Union: COUNCIL SEEKS TO AVOID OBLIGATION TO MAKE MEMBERS STATES’ POSITIONS PUBLIC FOLLOWING COURT RULING and to include MEMBER STATE NAMES ONLY “WHERE IT IS DEEMED APPROPRIATE”: Drafting of documents relating to legislative activities (13 May 2014, pdf)
In reaction of the ECJ decision on the Access-Info judgment (pdf) stating that on legislative measures the positions of EU Member States (governments) should be made public with some very limited exceptions the current proposal of the General Secretariat of the Council to be discussed by COREPER (the high-level committee of permanent national representatives based in Brussels) is that: Member State’ names should be made public regarding on-going legislation “where it is deemed appropriate”. The General Secretariat (full-time Council officials) argue that this its preferred option is:
“Option 3 appears to be a more suitable option as it allows striking a good balance between the interest in receiving full information and keeping complete records and the interest in protecting the Member States’ negotiating flexibility and thus the effectiveness of the Council’s decision-making process.“ [emphasis added]
Tony Bunyan, Statewatch Director, comments: “The Council has been deliberating since November last year on how to get around the Court’s judgment and is now proposing to continue its existing practice of deciding for itself when and if to make public the interventions taken by national governments on new measures. At the same time in Footnote 6 it is seeking to further entrench the secrecy of its decision-making by emphasising that LIMITE documents (which are not classified documents) are for internal circulation only and should not be made public. The three documents here are LIMITE documents and are made available in the public interest, namely that the public have a right to know what is being decided in their name by their governments.” .
Previous documents: Public access to documents (LIMITE, 17177/13, 29 November 2013, pdf) and Document no: 7356-14 (6 March 2014, pdf)
STATEWATCH: ACCESS TO EU DOCUMENTS: Calling the agencies to account: Frontex, Europol & Eurojust: Statewatch complaints & Ombudsman’s own initiative Inquiry
- Frontex given until end of March 2014 to comply with the Ombudsman’s Recommendations to change its Management Board Decision putting into effect the Regulation on public access to EU documents
- Eurojust seeks to avoid any compliance until some undefined point in the future
- Europol meets four Ombudsman Recommendations – but the launch of its public register of documents “planned for completion by the end of 2013” is overdue
Tony Bunyan, Statewatch Director, comments:
“Access to documents is the lifeblood of accountability and democratic standards so why has it taken nine, seven and ten years respectively for these Agencies to start coming into line with EU law on public access to documents? Who is responsible for the failure to ensure compliance with EU law? Is it the European Commission which, since December 2009, has been charged under Article 17 of the Lisbon Treaty with ensuring the application of EU law?
It is high-time that these three agencies were made fully accountable to EU law and to the public by adopting and fully implementing the right of access to documents. I look forward to the Ombudsman re-visiting these complaints.”
EU: SECRECY: Statewatch Analysis: Constructing the secret EU state: “Restricted” and “Limite” documents hidden from view by the Council (pdf)
• Over 117,000 “RESTRICTED” documents produced or handled by the Council since 2001 but only 13,184 are listed in its public register of documents
• 103,839 “RESTRICTED” documents not listed in the Council’s public register due to the “originators” right of veto?
• The Council seeks to stop the publication of unreleased “LIMITE” documents, which are defined as “sensitive unclassified documents”
• The Commission has failed to implement the Lisbon Treaty to ensure that all legislative documents are made public as they are produced – this means that 60% of Council documents relating to legislative decision-making are made public after “the final adoption” of measures
• The Council uses Article 4.3, the “space to think”, to refuse access to 50% of requests for access to legislative documents under discussion
Tony Bunyan, Statewatch Director, comments:
“The Council have constructed a two-tier system of secrecy to keep from public view thousands and thousands of documents. This has been compounded by the failure of the European Commission to put forward proposals to implement the provision in the Lisbon Treaty to make all documents concerning the legislative procedure public.
In place of the need to deepen democratic openness and accountability in EU the Council has entrenched a system of secrecy based on its discretion to decide whether and when to make documents public.
The result is that the European legislature – the Council of the European Union and the European Parliament – meet in secret trilogues to decide over 80% of new laws going through the EU.”
EU: SECRECY: Statewatch Analysis: Statewatch, the European Commission and the Dutch Senate (pdf)
• Parliamentary sovereignty in the EU under threat?
• The EU-USA agreement on the exchange of personal data, the later US intervention on draft new EU Data Protection Regulation and the Snowden revelations
Tony Bunyan, Statewatch Director, comments:
“Subsequent events have shown that it was clearly in the public interest to make public the inadequate EU negotiating position back in 2010. The USA’s hostile reaction to the draft new EU Regulation on data protection in 2011 and the Snowden revelations from June 2013 demonstrate the need for binding privacy rights in the EU that cannot be negotiated away in secret meetings.
This case highlights the limits that have been put in place to try and restrict the sovereignty of national parliaments’ to decide for themselves what documents can be placed in the public domain in order that the people can understand what is being decided in their name.”
EU: Secrecy: Secret rules despite Court judgment (Wobbing.eu): by Staffan Dahllöf:
“EU-ministers have postponed implementing a judgement on transparency and rejects to disclose alternatives discussed – and leaked. Six member states vote against secrecy. The European Ombudsman is asked to step in.”
EU: ACCESS TO DOCUMENTS: European Parliament: Conference: Transparency will save the EU: Restoring trust through public access to documents: principles, practice and challenges (pdf) EP: Tuesday 1 April 2014, 14.00-16.00, Room: ASP 1 G2. A frequent criticism levelled at the EU is that it is still a bureaucratic and diplomatic construction where procedures are opaque and culture secretive. This conference will examine why the Reform initiated thirteen years ago is still blocked and what can be done to ensure that the EU is open and transparent.
EU: European Parliament: As adopted by plenary on: Report on public access to documents (Rule 104(7)) for the years 2011-2013 (pdf): Rapporteur: Sophia in ‘t Veld
European Parliament: “Transparency is an essential element of a lively democracy” (pdf). Record of a discussion between Rapporteurs on access to EU documents. Renate Sommer is parliament’s EPP group shadow rapporteur says: “In order to avoid outside influence on the legislative process at this stage trilogues should not be public and documents relating to them should not be disclosed.” while Michael Cashman is parliament’s S&D group shadow rapporteur says: “the European commission and the European council, with the help of some elements of the European People’s Party and, rather contradictorily to their continuous attack on the EU, the UK Independence Party, continue to think that we should legislate behind closed doors.” and Cornelis de Jong is parliament’s GUE/NGL group shadow rapporteur: “If it is already difficult for MEPs to grasp what decisions are made on the internal arrangements in the EP, for the ordinary citizen this is a complete black box.”
EU: ACCESS TO EU DOCUMENTS REGULATION: Council of the European Union puts off moving to an open EU yet again: See: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents – State of play (pdf) After nearly five years of stalemate, an “institutional impasse”, the Council of the European Union (EU Member State governments) proposed that Regulation 1049/2001 on public access to EU institution documents should be amended but limited to modifying it to “take into account the provisions of the Lisbon Treaty”. This is a reference to the Commission proposal of 2008 which only makes one change – to extend the Regulation to cover EU agencies.
The Commission proposal ignores the obligation to implement Article 15 of the Lisbon Treaty which states that the Council and the European Parliament shall publish “documents relating to the legislative procedures” which would require the removal of Article 4.3 of the Regulation that allows the Council to refuse access where disclosure could “seriously undermine the institutions decision-making process, unless there is an overriding public interest in disclosure”. The Council never agree to release a document on public interest grounds and 40.9% of all initial applications are refused under Article 4.3 plus part of 25.3% of refusals for “several reasons together” (2012 Annual Report). See: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments and Secret trilogues and the democratic deficit by Tony Bunyan
Tony Bunyan, Statewatch Director, comments: “The European Parliament’s rapporteur, Michael Cashman MEP, is quite right to ask the Council, as a minimum, to commit itself to “new arrangements for granting access to documents” and putting documents online.
The failure of the Commission to propose, and the Council to support, the full implementation of the Lisbon Treaty by making documents related to the legislative procedure public as they are produced means we have secret documents being discussed in secret trilogues – a process that excludes national parliaments, citizens and civil society. This makes a travesty of democratic accountability.”
EU: ACCESS TO DOCUMENTS: Access to documents: Parliament calls for immediate action to break the deadlock (Press release, pdf): “The Commission should engage fully in the amending and ‘Lisbonising’ of the 2001 regulation on access to documents, or take “any appropriate measures to break the deadlock”, and Council should immediately restart debates to adopt its first-reading position and to continue negotiations, ask MEPs.” The resolution was adopted by 333 votes in favour, 128 against and 50 abstentions.
EU: REGULATION ON ACCESS TO EU DOCUMENTS: The Council of the European Union has carried out a survey of Member States asking three questions. The first, and key, question concerns the definition of a “document” (Member States operate a different system based on the provision of “information”) and the so-called “space to think” (in order to keep documents secret in the decision-making process): Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents – Discussion paper (pdf).
Tony Bunyan, Statewatch Director, comments:
“If anyone thought that EU Member States would provide examples of how to improve the Regulation of access to EU documents (1049/2001) this survey shows how wrong they are. For example, they operate systems based on the provision of “information” not that of access to documents – which has been in place in the EU for nearly 30 years. And they use very restrictive notions of the “space to think” including denying access where it would “give rise to misunderstandings”.”
On 30 April 2008 the Commission proposed a series of amendments to the Regulation on access to EU documents (1049/2001). The measure will be adopted under “co-decision” whereby the Council of of the European Union (the 27 governments) and the European Parliament have to agree on any changes. Basic documents: Commission: Proposed amendments: Explanatory Memorandum and Annotated text(pdf); European Parliament: Report on the proposal for a regulation regarding public access to European Parliament, Council and Commission documents (recast) (adopted in December 2011) and: Regulation 1049/2001/EC Regulation 1049/2001/EC (pdf): in operation since 2001 and ongoing. Full background documentation since 1993 is available on our Observatory: Freedom of Information (FOI) in the EU
News and analyses: December 2011 ongoing (followed by Council documents from this period)
EU: REGULATION ON ACCESS TO DOCUMENTS: Final “State of play” from Danish Council Presidency: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (pdf). Explains the Presidency perspective on the failed attempt to amend Regulation 1049. It presented an “adjusted” draft Council position but the “WPI [Working Party on Information] did however not share this assessment” “Some delegations” wanted to abandon the process, and “others” wanted a “limited package” covering the Arhus Convention, data protection, information officers and “improving” access to legislative documents “based on the Commission 2008 proposal.
The EU institutions are left with the dilemma of implementing the Commission’s 2011 proposal to “Lisbonise” the Regulation by formally extending the scope of the Regulation to cover EU agencies and bodies but even this is contentious, see: See Statewatch Analyses: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf) and Secret trilogues and the democratic deficit (pdf)
EU: REVISION OF THE REGULATION ON ACCESS TO EU DOCUMENTS: Talks collapse on access to EU documents (euobserver, link):
“The Danish presidency has abandoned attempts to agree new rules on access to EU documents. It took the decision on Tuesday (12 June) after EU countries and the European Commission last week rejected its latest draft of the law. It still aims to get MEPs to back a commission proposal to extend existing rules on freedom of information to all EU institutions – including its 31 agencies – however….The incoming Cypriot presidency might pick up where Denmark left off. But the failed talks have left behind a prickly atmosphere.”
Tony Bunyan, Statewatch Director, comments:
“This is a victory for common sense, all the alternatives on the table would have fundamentally undermined openness. However, the intention of the Council Presidency to push through the Commission’s 2011 proposal to “Lisbonise” the Regulation is not as simple as they seem to think.
The 2011 proposal would simply extend the scope of the Regulation to EU agencies and bodies but this does not meet the requirements of the Lisbon Treaty. Under Articles 15.1 to 15.3, the Council and the European Parliament have to meet in public when considering draft legislative acts and to ensure the publication of the documents relating to legislative procedures. This gives the European Parliament a real opportunity to insist that the Treaty obligations are fully met.
All the documents concerning legislative procedures have to be made public, including those discussed between the two legislatures (the Council and the European Parliament) in 1st and 2nd reading trilogue meetings which are currently kept secret.”
See Statewatch Analyses: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf) and Secret trilogues and the democratic deficit (pdf)
EU: REGULATION ON ACCESS TO DOCUMENTS: Council Presidency proposals rejected by Working Party on Information: Council of the European Union: Latest draft Council position to be discussed in the Working Party on Information on Friday 8 June (dated 4 June 2012, pdf) Statewatch analysis of this latest draft of the Access to Documents Regulation by Steve Peers, Professor of Law, Law School, University of Essex were rejected in the Councils Working Party on Information (WPI) on Friday 8 June (see wobbing report, link).
The re-drafted Council position (DS 1397-12, above) was said to move too far to meet the European Parliament’s views by some Member States and not far enough for others in the WPI. The Council Presidency could revert to its previous draft Council position: Consolidation text of the Council of the European Union’s position as at 5 June (prepared by Statewatch, pdf) and Statewatch Analysis: Revision of the Regulation on access to documents: Comments on the Council’s Informal Drafting Note (pdf) by Professor Steve Peers, but this is almost certain to be rejected by the European Parliament.
Alternatively the Council Presidency could drop the current controversial proposals and opt instead to go ahead with an apparently simple change in the Commission’s 2011 Proposal to “Lisbonise” the current Regulation but even this could prove to be controversial as the Commission simply intends to extend the Regulation to EU agencies and bodies. However, this was discussed at a hearing in the European Parliament last year and many think that proper “Lisbonisation” goes further than this, see: The case for the repeal of Article 4.3
The Danish Council Presidency finishes at the end of June, when Cyprus takes up the mantle until December.
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EU: REGULATION ON ACCESS TO DOCUMENTS: Council of the European Union: Latest draft Council position to be discussed in the Working Party on Information on Friday 8 June (dated 4 June 2012, pdf)
EU: REVISION OF THE REGULATION ON ACCESS TO DOCUMENTS: Statewatch Analysis: Revision of the Regulation on access to documents: Comments on the Council’s Informal Drafting Note (pdf) by Professor Steve Peers, Professor of Law, Law School, University of Essex. See below.
EU: REVISION OF THE REGULATION ON ACCESS TO DOCUMENTS: Talks start between the Council and the European Parliament: Last week there was a “technical meeting” between between the EP Rapporteur, Michael Cashman MEP and Mrs Jaatteenmaki MEP from the parliament, the Council Presidency and European Commission. This was not a full 2nd reading “trilogue” involving the Rapporteur and Shadow Rapporteurs from each of the political groups. The Council presented an: Informal Drafting Note (pdf).
One of the changes concerns “Direct access to documents” (Article 12 (or new Article 3a). This appears to meet the Lisbon Treaty and the European Parliament’s concerns for full access to all documents concerning the legislative process. However, this would be subject to the following exceptions: a) Article 4 (ie: public security and international relations), b) Article 9 Classified documents (including “Restricted” documents who disclosure could be “disadvantageous”, c) the Council (and Commission’s) new Article 3a which redefine a “document” and would enormously limit access only to those that are “finalised” (ie: no previous drafts would be public) and d) Article 4.3 where access to documents can be refused (as they regularly are) were disclosure could “undermine” the decision-making process. (More follows)
Tony Bunyan, Statewatch Director, comments:
“This proposal, together with a new inter-institutional website, would appear to be a big step forward. But once all the exceptions and grounds for not including swathes of documents is taken into account it would lead to a nearly meaningless change and leave the people and civil society in the dark about the real issues and debates that have taken place behind closed doors.”
The political groups in the European Parliament are now commenting on this Council Note. On the Council side its position will next be discussed in the Working Party on Information on 8 June and then in COREPER on 13 June. The Danish Council Presidency says it wants to complete the whole process by the end of June (a usual ploy by all of the six-monthly Council Presidencies)
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EU: REVISION OF THE REGULATION ON ACCESS TO DOCUMENTS: Consolidation text of the Council of the European Union’s position as at 5 June (prepared by Statewatch, pdf): This consolidated version (Statewatch: 4.6.12) of the Council’s proposed amendments to Regulation 1049/2001 is based on its document no: 9441/12 and has been updated to include the revised Article 4a (agreed by COREPER). The Commission and Parliament proposals for Articles 10 and 16 have been added as the latter contains a “Red Line” issue (which the Council chose not to amend). No amendments are proposed for Articles 9, 11 and 13 by the Commission or Council. See: Statewatch Analysis: Revision of the Regulation on access to documents: Comments on the Council’s Informal Drafting Note (pdf) by Professor Steve Peers
EU: ACCESS TO DOCUMENTS REGULATION: Council of the European Union seeks to overturn “Turco judgment” which would allow access to legal advice to the Council concerning legislative issues: The Minutes of COREPER II on 8, 10 and 14 May 2012 (the high-level meeting on Member Sates’ permanent representatives in Brussels) state:
“Recast of Regulation (EC) o 1049/2001 regarding public access to European Parliament, Council and Commission documents (First reading)
– Preparation of informal trilogues: The Committee agreed to mandate the Presidency to initiate informal trilogues with the European Parliament and the Commission with a view to achieving a political agreement on a pre-negotiated Council position at first reading.
The Committee agreed by qualified majority the draft mandate set out in the fourth column of document 9441/12 with the following modifications:
– Article 4a, paragraph 1: “Access to legal advice relating to issues which are the subject of a decision-making process until the relevant act becomes definitive or regarding a question of law which has not been decided, in last instance, by the Court of Justice, shall be presumed to undermine the protection of legal advice. The applicant may demonstrate that there is an overriding public interest justifying the disclosure of the documents.”;
– Article 4a, paragraph 3: “For the purpose of this article, the principles underlying this regulation do not in themselves constitute such an overriding public interest.”.
SE delegation did not agree with the contents of the mandate, as set out in 9441/12, and made the following statement : “The compromise text would lead to less transparency in the EU. Hence, Sweden cannot endorse the text.” EE, FI and NL delegations aligned themselves to this statement.” [emphasis added]
See: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (first reading) – Preparation of informal trilogues (Council doc: 9941-12, pdf)
EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Council seeks to re-write the definition of a “document” after 19 years: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (first reading) – Preparation of informal trilogues (pdf). Since 1993 the definition of a “document” has been that a: “document shall mean any content whatever its medium” and this is in the current Regulation. However, the Council intends to keep this general definition (Article 3) but to add Article 3a: “Documents subject to this Regulation”: which says a document becomes subject to this Regulation (ie: the whole Regulation) when: “it has 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” (emphasis added) In simple terms a “document” is only really a “document” when it is finalised (all the drafts and discussion prior to this are not “documents”) – this is the same definition, which was widely criticised, first put forward by the Commission in 2008. .
The double-faced language of the Council position means also that while it appears in Article 12 that documents concerning legislative and non-legislative acts: “shall, subject to Articles 4 and 9, be made directly accessible to the public” they are still subject to the general rule in Article 3a above. It would thus negate Articles 15.1 and 15.3 para 5 of the Lisbon Treaty.
Tony Bunyan, Statewatch Director, comments:
” In 1997 the Amsterdam Treaty promised to “enshrine” the public’s right of access to EU documents but in 2001 we only got half the cake. If the Council and the Commission get their way we will be left with just a few crumbs [small fragments]. Access to documents is the life-blood of a healthy, vibrant, democracy which encourages informed consent and dissent. Instead the Council wants an unaccountable democracy bereft of content and meaning.”
EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Statewatch challenges Council secrecy on access to EU documents on the revision of the Regulation: Letter from the Council refusing access to three documents concerning the Council’s discussions on revising the Regulation on access to EU documents (pdf) in response a: Confirmatory application by Tony Bunyan, on behalf of Statewatch (pdf)
The Council had hidden three crucial documents and claimed that access could not be given because 1) It would “prejudice Council’s capacity to conduct frank and candid discussions”. In other words to meet in secret as a legislature under the so-called “space to think” (under Article 4.3 of the Regulation on acces to documents) see: The case for the repeal of Article 4.3 2) The Council then claims that there was an “absence of any element suggesting an overriding public interest” in dislcosure – it is hard to think of an issue on which the public’s right to know what is being discussed manifestly outweighs the need for secrecy. 3) The Council concludes by saying that access may to given “after the the final adoption of the act” – subject still to Article 4.3 para 2.
Tony Bunyan, Statewatch Director, comments:
“The notion that the wish of a legislature to meet in secret (by failing to release the documents being discussed) outweighs the public interest of the citizens on such a fundamental issue, namely the right to know what is being discussed and proposed in a legislative process in order to know and allow for public debate, has no place in a democracy worthy of the name.”
EU: ACCESS TO EU DOCUMENTS: Presidency criticised: Even worse than the Commission: The Danish EU-presidency has failed to unite member states on new access rules for the EU-institutions. Sweden, Finland and possibly others will refuse to back a mandate to negotiate a new regulation (Wobbing.eu,link)
“Its no secrecy that member states have different opinions on access rules. But now the split comes out in the open. Swedish minister of justice Beatrice Ask (conservative) has instructed the Swedish EU-ambassador not to endorse a negotiating mandate proposed by the Danish presidency.
Minister Ask explains why in a comment to this website: ”If the mandate would give space for improved openness I would be the first to vote yes, but I believe that would be wishful thinking as things stand right now. The mandate will pull in the opposite direction, and there is even a risk that it is worse than the Commission’s proposal from 2008.”
It is understood that the main issues for the Council of the European Union are:
– Definition of a document. A new article defining when a document is finalized and thus accessible has been added. The article says a document is included ”when finalized for the purpose it was intended.” – this is the same as the Commission’s proposal to replace the definition of a “document” in place since 1993.
– Whole categories of documents are to be kept outside the scope – documents on infringement procedures (member states accused of breaking EU-law), on competition (cartels, mergers and state-aid cases) and documents related to court proceedings.
– Advice from legal services on disputed matters are also to be kept outside the scope – an exemption judged by the Court of Justice to be unfounded according to the present regulation.
– Data protection likely to overrule the right to access.
– Veto for Member States on release of documents sent to the institutions
EU: Council of the European Union: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents – Meetings on 9 and 27 March 2012 of the Working Party on Information (8410/12, pdf)
EU: ACCESS TO DOCUMENTS REGULATION: Secretive talks on access rules (Wobbing.eu, link): “Nicolai Wammen, minister of European affairs (Social Democrat) explains in a diplomatic language: ”Negotiations will be very difficult. There are very different positions in this case, both within the Council and the Parliament. As I see it the only way forward is to show a pragmatic and realistic approach. We are no having talks with all actors and we encourage forcefully to show flexibility and a will to compromise.” This might look lika an undramatic mumbo-jumbo talk. But the statement confirms that the presidency have had bilateral talks with all member states even before the formal discussions in the Council has begun.
EU: REGULATION ON ACCESS TO EU DOCUMENTS: Report on debate in the European Parliament: Proposal for a Regulation regarding public access to European Parliament, Council and Commission documents (recast) – Outcome of the European Parliament’s first reading (Strasbourg, 12 to 15 December 2011) (8610/12, pdf)
Council of the European Union: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (7995/12.pdf)
EU: Revising the Access to documents Regulation saga – The beginning of the endgame
– “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)
EU: Council of the European Union: Council Presidency Note to the Working Party on Information, 13.2.12 (EU doc no: 6439/12, pdf)
EU: Council of the European Union: Proposal for a Regulation of the European Parliament and of the Council
amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (14549/11, pdf). Council backs quite inadequate Commission proposal to bring the Regulation on access to EU documents (1049/2001) in line with the Lisbon Treaty which ignores Article 15 of the Treaty. See also: Regulation on public to documents: the European Commission is the problem: the Commission 2011 proposals fails to abolish Article 4.3 of the Regulation in line with the Lisbon Treaty: the institutions’ “space to think” in secret: “for two years the Commission has “sat on its hands” and failed to respond to the “institutional impasse” between the Council and the European Parliament, it should now produce a completely new “Lisbonised” proposal” (Tony Bunyan)
EU: REGULATION ON ACCESS TO EU DOCUMENTS: European Parliament: Public access to documents: towards more transparency in the EU (Press release, pdf): The report by rapporteur Michael Cashman MEP was passed with 394 votes in favour, 197 against and 35 abstentions.The report was opposed by the PPE (Centre-right, conservative group).
The European Commissioner Maroš Šefèoviè responsible for the dossier maintained the Commission’s long-standing “head in the sand” position and told the plenary: “This agreement risks taking time and I am afraid that, given the amendments proposed in the report, agreement on changes to the regulations is not within reach. I cannot of course anticipate the position that the Council will take on the proposed amendments but many of them cannot be accepted by the Commission.”
Council documents: December 2011 onwards
– Council: Meetings on 9 and 27 March 2012 of the Working Party on Information (8410/12, pdf)
– Council: Council Presidency Note to the Working Party on Information, 13.2.12 (EU doc no: 6439/12, pdf)
– Council: Reaction ot Commission’s “LIsbon” amendment: Reaction (14549/11, pdf)
News and analyses: pre- December 2011
EU: Regulation on public access to documents: the European Commission is the problem
– in its 2008 proposal the Commission put secrecy above openness by increasing the power of the institutions to refuse access to documents above establishing the public’s right to know
– the Commission failed to withdraw its 2008 proposals which are incompatible with the Lisbon Treaty, because of its proposal to change the definition of a “document”: “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)
– the Commission 2011 proposals fails to abolish Article 4.3 of the Regulation in line with the Lisbon Treaty: the institutions’ “space to think” in secret
– “for two years the Commission has “sat on its hands” and failed to respond to the “institutional impasse” between the Council and the European Parliament, it should now produce a completely new “Lisbonised” proposal” (Tony Bunyan)
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.
ECJ: Highlights of the Access Info Europe judgment (see story below):
1. “Openness makes it possible for citizens to participate more closely in the decision-making process and for the administration to enjoy greater legitimacy and to be more effective and more accountable to the citizen in a democratic system.” (para 56 of the judgment)
The Council claimed that Statewatch’s publication of the document EU doc no: 16338/08 (pdf) had:
– seriously undermined the Council’s decision-making procedures
– had led the Council to change it procedures so as not to record the Member State positions and
– disclosure lead to a “hostile media reception” or “sharp criticism on the part of the public”
The Court found that none of these allegations were substantiated – and observed on the third allegation that: “it is in the nature of democratic debate that a proposal for amendment of a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, can be subject to both positive and negative comments on the part of the public and media.”
2. The Court said that the arguments presented by the Council:
“are not sufficiently substantiated to justify, in themselves, the refusal to disclose the identity of those responsible for the various proposals, who must, in a system based on the principle of democratic legitimacy, be publicly accountable for their actions. In that regard, it should be noted that public access to the entire content of Council documents – including, in the present case, the identity of those who made the various proposals – constitutes the principle, above all in the context of a procedure in which the institutions act in a legislative capacity …. If citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information.. Public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently. ” (Point 69: emphasis added)
Tony Bunyan, Statewatch Director, comments:
“The case for the repeal of Article 4.3 of the Regulation on access to EU documents which allows the Council to routinely refuse access to documents “under discussion” on the grounds that to do so would “seriously undermine” the decision-making procedure could not be put better:
The Commission’s recent proposal to amend the Regulation to reflect the changes in the Lisbon Treaty provides an excellent opportunity for the European Parliament to effect this judgment by getting rid of Article 4.3 and open up the Council’s legislative role to public scrutiny and accountability”
See: The case for the repeal of Article 4.3
EUROPEAN COURT OF JUSTICE: Major victory for openness: The General Court of the ECJ has found in favour of the NGO Access Info Europe for access to a Council document containing the position of Member States concerning amendments to the EU Regulation on public access to documents: Full-text of ECJ judgment (pdf). When Access Info Europe applied for the document the names of the Member States putting forward amendments – Austria, Greece, Italy, UK and Germany – were censored. Access Info Europe appealed and the Council still refused to give access so the case went to court. The Council were backed in the case by the governments of UK and Greece. The ECJ overturned the Council decision to refuse access to the full contents of the document under Article 4.3 of the Regulation on the grounds that it would “seriously undermine the institution’s decision-making process”. It should be noted that amendments to the Regulation on public access to documents concern the Council of the European Union’s legislative role whereby it is co-legislator with the European Parliament, see: The case for the repeal of Article 4.3
The document in question concerned discussions within the Council on amending the Regulation on public access to EU documents – the document dated 26 November 2008 was put online by Statewatch on 5 December 2008: EU doc no: 16338/08 (pdf). Much of the ECJ’s judgment concerns the alleged effect of Statewatch’s disclosure of the full text of the document on the Council’s decision-making procedures.
For background documentation on the discussions to amend the Regulation see: Observatory: the Regulation on access to EU documents: 2008 – 2011
Analysis follows.
20 March 2011: EU: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments
– The public and civil society have a right to know what is being discussed during the EU legislative process
– Abolish the “space to think”: Article 4.3 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]
EU: Access to documents Regulation: Access Info Europe survey: The Secret State of EU Transparency Reforms (pdf): 16 out of 27 Member States refuse to provide information on EU transparency negotiations: In total 23 countries applied exceptions to all or part of the information requested. Protection of “ongoing negotiations”, “decision making” and “international relations” were commonly used exceptions. Also used to shield governments from accountability were grounds that the information was held in “internal documents” or “might create misunderstanding.”
20 March 2011: Statewatch Report: EU: REGULATION (1049/2001) on public access to EU documents: The State of Play: Amending the Regulation on public access to EU documents – an “institutional impasse”
Statewatch Analysis: EU: Deepening the democratic deficit: the failure to “enshrine” the public’s right of access to documents (pdf) by Tony Bunyan.
In April 2008 the Commission opened up the process to amend the 2001 Regulation on access to EU documents – nearly three years on nothing has happened – all that has been agreed is a new set of “comitology” rules that will restrict access.
Statewatch Analysis: Case Law Summary: EU access to documents Regulation (142 pages, small pdf). Prepared by Steve Peers, Professor of Law, University of Essex:
“The following summary sets out systematically the case law of the EU Courts (the Court of Justice and the lower court, the General Court – previously known as the Court of First Instance) concerning the EU’s access to documents regulation (Reg. 1049/2001).”
EU: ACCESS TO DOCUMENTS REGULATION: European Court of Justice: Case T-452/09 before the General Court – ClientEarth v. Council of the European Union (pdf). This case taken by Client Earth concerns the refusal of access to the advice of the Council of the European Union’s Legal Service on the European Parliament’s amendments to the European Commission’s proposals to change the EU Regulation on access to documents (1049/2001) because it:
“failed to explain how full disclosure would damage the protection of legal advice, in particular in the light of the Turco judgment of the Court of Justice” See Turco judgment full-text (pdf) and on which the Court’s press release had said:
“The Court takes the view that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases transparency and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act.”
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 (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. Tony Bunyan, Statewatch Director, comments: “The opinion of the Council’s Legal Service was an “open” secret.”
EU-REGULATION on Access to documents: Aarhus-environment: EEB and Clientearth: Briefing (pdf) and Amendments (pdf)
Updated: European Parliament: 12.5.10: Draft EP report (Rapporteur: MIchael Cashman MEP). Earlier Draft report (Rapporteur: MIchael Cashman MEP): Draft report on amending the Regulation (22.3.10, pdf). Statewatch Comments on this draft (pdf)
NB: The Council Working Party has spent no time this year discussing its draft position – apart from verbal report back from the Spanish Council Presidency it has no consider the Commission proposals. See: Commission statement: Explanatory note from the Commission (pdf) which says:
“If… it appears that the legislative procedure for the adoption of the Commission’s recast proposal cannot be concluded within a reasonable time frame, the Commission will consider the possibility to submit a limited proposal amending the current
Regulation (EC) No 1049/2001 only with regard to the changes introduced by Article 15(3) of the Treaty on the Functioning of the European Union.”
European Parliament: Regulation on access to EU documents (17 December 2009): Access to EU documents: urgent update of rules needed (Press release, pdf) and Full-text of Resolution (pdf). The Resolution was tabled by the S&D, ALDE, Greens/EFA, ECR and GUE/NGL groups and adopted today by 341 votes to 206, with 20 abstentions. Greens/EFA Shadow Rapporteur, Heidi Hautala MEP said: “if the Council and the Commission do not budge from their positions, Parliament should reject the whole proposal”.
The Commission put forward proposals to amend the Regulation on access to EU documents in April 2008. The European Parliament prepared a series of amendments, some amending the Commission’s proposals and some additional ones seeking to extend the right of access. The Council and its Legal Service said that the parliament could not put forward new proposals not covered by the Commission draft and declared “inadmissible” 27 of the parliament’s amendments. The European Parliament, and its Legal Service, disagreed and refused to adopt its 1st reading position. The Commission said it could not consider any changes until the parliament and Council agreed their initial positions. Tony Bunyan, Statewatch editor, commented: “We have an institutional impasse”
Report by Council of debate in the plenary session: Summary of the plenary session of the European Parliament, held in Strasbourg on 15 December 2009 (pdf)
EU: Regulation on access to EU documents: The debate in the European Parliaments’s Civil Liberties Committee (LIBE) on 5 October confirmed the institutional impasse that currently exists with each of the three institutions taking different position: See: A quick guide to the “state of play” on amending the Regulation and: Report on LIBE Committee (pdf). The Commission representative also said during the debate that:
“Concerning the Lisbon Treaty, the preparatory work on legal adjustments was ongoing, with a view to the preparation of an omnibus proposal when the Treaty came into force.” (emphasis added).
Tony Bunyan,Statewatch editor, comments:
“This process is turning into a farce. The Commission put forward proposals to amend the Regulation on access to documents in April 2008. Now 18 months on there has been no progress with each institutions taking different positions. Now we are told that there will be a further “omnibus proposal” will be prepared some time next year when, and if, the Lisbon Treaty is adopted.
Civil society and citizens have been waiting for years for the Regulation to truly “enshrine” the right of access promised by the Amsterdam Treaty in 1999 and we are still waiting.”
See also: Proposals for greater openness, transparency and democracy in the EU (pdf) by Professor Steve Peers
and Statewatch’s Observatory: the Regulation on access to EU documents:2008-2009
Confirmation of the institutional impasse is reflected as the Swedish Council Presidency puts discussions on hold until the European Parliament makes it position clear:
“At this stage, the Council’s work on the Commission’s proposal could of course continue at the next IWP meeting. Delegations could aim for agreement on some additional issues. Another alternative would be for the Council to postpone further discussions on the Commission’s proposal until relevant information from the European Parliament is available. The Presidency suggests the second option.” See: EU doc no: 12492/09 (pdf)
The next possible discussion could take place in the European Parliament’s Civil Liberties (LIBE) on 5-6 October. See also: Proposals for greater openness, transparency and democracy in the EU (pdf) by Professor Steve Peers and See: A quick guide to the “state of play” on amending the Regulation
EU: Wallstrom: EU needs a commissioner for citizens (euobserver, link). Previous Commissioner Communications says on the Regulation for access to EU documents proposal, for which she was responsible, that:
“There was also the problem of the fact that designating a commissioner for transparency and democracy does not mean that it then automatically transpires. This was particularly so of transparency where she says there is a still a north-south divide on the necessity of being open about documents and how decisions are taken, with Nordic countries traditionally more open. “It has not been easy to move positions on openness and transparency” she says noting that it is “not evident” that the EU should go beyond the current basic rules. In her opinion member states have taken a step back on the issue.” (emphasis added)
EU: Regulation on public access to EU documents: When the European Commission put forward proposals to amend the Regulation on access to documents in April 2008 it was assumed that the process, involving codecision by the Council of the European Union and the European Parliament, would be finalised under the Swedish Council Presidency by December 2009. However, there is little prospect of any agreement under the current Swedish Council Presidency as each of the three institutions have quite different positions on what changes should be made. Tony Bunyan, Statewatch editor, comments: “We have reached an institutional impasse.” See: A quick guide to the “state of play” on amending the Regulation
Latest Council documents:
– EU doc no: 10859/1/09: (22.7.09, 38 pages, REV 1): Sets out the state of the discussions in the Council and presents a chart with the Commission proposals, the “technically admissible EP amendments” and amendments proposed by by Member States.
– EU doc no: 10859/09: (30.6.09, 39 pages) Sets out the state of the discussions in the Council and presents a chart with the Commission proposals, the “technically admissible EP amendments” and amendments proposed by by Member States.
– EU doc no: 10297/09: Related to document below: It sets out the Commission’s proposal, the “technically admissible EP amendments” and observations by Member States.
– EU doc no: 10443/09: Proposal by Denmark, Estonia, Finland and Slovenia to limit a Member State’s right to refuse access to a document submitted to exceptions under Article 4 and to delete: “or on specific provisions in its own legislation preventing
disclosure of the document concerned.”
Council documents: 1) Good proposal from the Netherlands providing for a public interest test if a Member State seeks to refuse access to a document it has submitted to the Council: EU doc no: 11065/09 and 2) Latest Council discussions: EU doc no: 10857/09
EU-UK: Regulation on access to EU documents: House of Lords Select Committee on the European Union issues critical report on the European Commission’s proposals and the position of the UK government: Access to EU Documents (pdf). Including:
“Q6 Chairman: Just to take a specific example, we have referred elsewhere to the publication on Statewatch of one of the Presidency’s working documents, of the type which this Committee rarely but occasionally sees, and the commentary by Professor Steve Peers. Do you regard that as helpful or unhelpful to the progression of such matters?
Caroline Flint (Minister for Europe): I do not think it is very helpful.”
Commenting Lord Mance, Chairman of the Lords EU Sub-Committee on Law and Institutions, said:
“Providing public access to documents is a key element in securing the accountability of European Institutions to European citizens. “We support attempts to make the EU more open to public scrutiny and hope the Commission use this opportunity to improve public access to documents, not limit it further. For that reason we think it is important that access to draft documents is maintained. It is not appropriate for the European Commission to establish arbitrary definitions of the point where a document is ‘formally transmitted’ in order to maintain space for policy development.
“We are concerned that the UK Government are seeking greater restrictions on the publication of legal advice in respect of legislation, and of negotiating positions adopted by Member States. Legislation should take place in as open an environment as possible.”
Statewatch analysis: The Treaty of Lisbon and EU Openness and Transparency (pdf) by Professor Steve Peers
EU: Tony Bunyan’s “View from the EU” column looks at the Current state of play of proposed changes to the Regulation on access to EU documents (Guardian Libertycentral, link, 20.5.09)
Council: Proposal made by Denmark, Estonia, Finland and Slovenia concerning Article 4, paragraph 2, point (c) of the Commission’s proposal (pdf). Following the European Court of Justice judgment in the Turco case that Council Legal Opinions on policy-making meassures should in general be made publicly available these four Member States are proposing that the Regulation be amended to establish this right. Background see:
– Press release
– Court judgment – full-text
– Turco press statement
Council Legal Service Opinion: so-called “partially accessible” document which censors 7 of the 10 pages: EU doc no: 6856/09 (dated 24.2.09, pdf).
Council: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast)U doc no: 7971/09 (EU doc no: 7971/09, dated 20.3.09, pdf). This document contains a detailed table and is based on the Opinion of the Council’s Legal Service, it declares EP amendments “admissible” or !inadmissable”.
Latest Council position: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) (8.5.09, pdf)
EU: Access to documents: Latest Council draft positions: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) (dated 16.4.09, pdf) and Proposals by Finland, Lithuania and Slovenia for deletion of Articles 2.5 and 2.6 and – proposal by Denmark, Estonia and the Netherlands for amendment to Article 3(a) (dated 17.4.09, pdf). It should be noted that in the former document the Council is only considering what it calls “Technically admissible European Parliament amendments”, thus leaving out most of them from its discussions.
EU: ACCESS TO DOCUMENTS: EU officials warned to be careful about email content (euobserver, link). Full-text of: DG Trade: Vademecum on access to documents, January 2009 (pdf). Tony Bunyan, Statewatch editor, comments:
“This staff document exposes the myth of those who claim that the Commission is unable to list all documents on its public register. The internal rules are clear – with some understandable exceptions – all documents should be listed. The problem is that the Commission has failed to enforce its own rules and meet its legal obligations under EU Regulation 1049/2001.
If every time an EU institution does not like the rules and the law these are changed to accomodate them – as some are proposing – it will herald an era of uncertainty and confusion undermining democratic decision-making.”
EU: Regulation on access to EU documents: Journalists angry over the European Parliament’s views on transparency – Swedish Union of Journalists
EU: Regulation on access to EU documents (1049/2001): Statewatch analysis: European Parliament report on the Regulation on public access to EU documents (pdf) by Professor Steve Peers, University of Essex. The analysis refers to the amendments in: Resolution on Commission proposals as adopted on 11 March 2009 (pdf). Overall 10 amendments are “strongly supported”, 13 are “supported” (including two where further amendments are needed, 7 are “opposed”, 1 is “strongly opposed” and in two instance amendments are proposed (including adding FOI requests, which was voted down by the parliament). Tony Bunyan, Statewatch editor, comments:
“To outside observers the process must be a bit of a mystery. The Commission has put forward proposals to amend the 2001 Regulation on access to EU documents. The European Parliament has agreed amendments to these proposals – but has not formally adopted them as a 1st reading Resolution. This means that the Commission can amend its proposals but will only consider doing so after the Council has adopted its position, which it does not seem close to.
The Council will agreed amendments to the Commission proposals, however, the parliament’s amendments go further and put forward changes not covered by the Commission and therefore they will not be considered by the Council in reaching its position.
It is then likely that there will be a series of protracted “trialogues” (in secret) between the three institutions to reach a “compromise”.”
Background: At the plenary session Mr Verheugen, Vice-President of the Commission made the following declaration on behalf of the Commission said: “The Commission takes note of the amendments voted by Parliament that it will study in detail. The Commission confirms its willingness to seek a compromise with Parliament and Council. The Commission will only consider its proposal after the two branches.. have adopted their positions.”
European Parliament: Regulation on access to EU documents: Resolution on Commission proposals as adopted on 11 March 2009 (pdf): Rapporteur: Michael Cashman MEP and Consolidated version of 11 March Resolution
EU: Regulation on access to EU documents: Statewatch analysis: Discussion of the new Access to Documents Regulation in the Council Updated version – 11 March 2009 (pdf) by Professor Steve Peers, University of Essex.
“On the whole, the reaction by Member States is still split between opponents of some of the amendments which would reduce the right of access, and supporters of those amendments, some of which would go even further to reduce the right of access. Since the latter group have more votes in Council, the prospect was either for a deadlock in Council or for a compromise where standards were lowered in some areas and merely maintained in others.
Since the European Parliament is about to adopt its negotiation position in the form of its first reading opinion, presumably the Council will now begin to react primarily to the EP’s position, rather than work further on its own position. This will change the negotiating dynamics in the Council, and so it remains to be seen whether the EP
can attract a sufficient number of Member States to those amendments which would increase the current level of access, while rejecting all amendments which
would lower it.”
EU: REGULATION ON ACCESS TO DOCUMENTS: Latest Council of European Union (27 governments) position: EU doc no: 5671 Rev 1 2009, dated 4 March 2009) (pdf). The European Parliament is debating the issue on 10 March and will vote on its position (the Cashman report) on Wednesday:
Tony Bunyan, Statewatch editor, comments:
“At the moment it looks like we are heading for the same impasse we had in 2000 when the three institutions – the Council, Commission and European Parliament – each adopted different positions. It is to be hoped the parliament’s position – with some constructive amendments we have proposed – will prevail and that at last we could be on the road to the new era of openness that the EU has long promised.”
Statewatch analysis of Statewatch’s Analysis of the LIBE amendments (pdf) by Professor Steve Peers, University of Essex.
EU: Baltic and Slovene ministers unite for better EU wob (EU Regulation, link)
EU: Access to documents (Regulation 1049/2001): European Parliament’s Civil Liberties (LIBE) report proposing amendments to the Commission’s proposals (19.2.09, pdf) plus Consolidated text showing changes to Commission proposals in EP report (pdf) and Statewatch’s Analysis of the LIBE amendments (pdf) by Professor Steve Peers, University of Essex.
Council discussions: Statewatch analysis: Discussion of the new Access to Documents Regulation in the Council (pdf) by Professor Steve Peers, University of Essex.
EU: Regulation on access to EU documents: Statewatch press release: Proposal to extend the EU Regulation on public access to documents to include “freedom of information” requests (Press release: full-text, pdf): Statewatch has submitted a proposal to the Civil Liberties Committee (LIBE) of the European Parliament to make explicit the right to make “Freedom of information” requests for EU documents.
Tony Bunyan, Statewatch Director, comments:
“There is sometimes a debate about whether a system of freedom of information requests on a specific subject is better or worse than the EU system of public registers of documents and the right of access to them. This is a unnecessary debate because both are clearly needed to ensure the greatest possible public access to EU information/documents.
Think of going into a public library. Under FOI you go to the front desk and ask for books on the topic you are interested in and the librarian goes away to find them for you. Under the public register of documents system you go into the library yourself and wander around the shelves to find what you are looking for – often making unexpected discoveries and connections.
Both systems have their strengths, that is why they are complementary. If our amendment is accepted, and as long as the current definition of a “document” together with the obligation on EU institutions to provide public registers listing the documents held are maintained, then we could at last be on the road to the new era of openness that the EU has long promised.”
EU: REGULATION ON PUBLIC ACCESS TO EU DOCUMENTS: The European Parliament’s Civil Liberties Committee (LIBE) is to discuss amendment to the Commission’s proposals for changes to the Regulation on Monday, 9 February. See: Statewatch analysis: Proposed amendments to Michael Cashman’s report on the Regulation on public access to EU documents (pdf) by Professor Steve Peers, University of Essex.
– European Ombudsman Decision: failure to establish proper register is “maladministration”
– European Parliament: calls on Commission to act on Ombudsman’s Decision
– European Commission – the custodian of EU law – refuses to comply
– European Commission reacts by trying to change the definition of a “document”
– Indications the Commission is creating new system to “vet” documents before they are placed on its public register
Extract from a speech by Dr Hans Brunmayr, Director-General of DG “Press, Communication, Protocol”, General Secretariat of the Council of the EU (2002-2007) in Brussels on 11 December 2008 organised by the Finnish Ministry of Justice:
“Regulation 1049 functions well. Personally I do not see a justification for a recast from the perspective of the Council. Too much precision and perfection bear the risk of restriction. The Regulation has allowed smooth application of access rules and served as catalyst for related
measures promoting openness and transparency. We should be careful and avoid to put the assets of the regulation in danger.” (from How has Regulation 1049 affected the work of the Council?)
EU: Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC): Contribution of the XL COSAC, Paris, 4 November 2008 (pdf) COSAC represents all the national parliaments in the EU and among its November Conclusions it expresses opposition to the European Commission’s proposal to change the definition of a “document” in the EU Regulation on access to documents:
“COSAC expresses its concerns about the proposal for a regulation regarding public access to documents (COM(2008) 229), which should not limit the access to documents in comparison with the current situation. COSAC thus invites the European Parliament and the Council to guarantee a full public access to European documents, according to the transparency principle.”
EU: Access to documents Regulation: Czech Senate comes out against Commission’s definition of a “document”: Czech Senate resolution, pdf) In response EU Commissioner Wallstrom says in a Replying letter:
“The definition of the concept of “document” in the proposal remains very wide. It is not intended to restrict the number of documents falling within the scope of the Regulation. On the one hand, it defines the point in time when a document drawn up by an institution becomes a “document” in the meaning of the Regulation. As long as a document is in progress, it is not yet a “document”; it is a “document” once it has been finalised by its author and sent to its internal or external recipients or, if it has not been sent to recipients, once it has been “otherwise registered”, e.g. deposited in the relevant case file.”
Tony Bunyan, Statewatch editor, comments:
“Under the Commission’s proposal only the final document would be a “document”. All the draft proposal documents would not be “documents”, which means that all the changes, options, discussions would be secret and hidden from public view and scrutiny. The lifeblood of a democracy is the ability of parliaments, civil society and citizens to know what is being discussed and to make their views known before the final “document” is set in stone.”
UK: Government does not support the Commission’s proposal to change the definition of a “document” in Article 3a of the Regulation: House of Commons: European Scrutiny Committee (See Point 6.10, link). It is also interesting to note that the Government Minister interprets the Commission’s proposed change to mean that it will exclude all “draft documents”.
First proposals from Member States to amend the Regulation: Proposals by Member States: Austria, UK and Germany: EU doc no: 16338/08 (26 November 2008) – primarily concerning with protecting internal Legal Services advice unconnected with court cases – a negative reaction to the Turco judgment in the ECJ: Press release and Court judgment – full-text. See: Turco press statement
Paris, 4 November 2008: CONCLUSIONS OF THE XL COSAC (Conference of Community and European Affairs Committees of Parliaments of the European Union) includes:
“COSAC expresses its concerns about the proposal for a regulation regarding public access to documents (COM (2008) 229), which should not limit the access to documents in comparison with the current situation. COSAC thus invites the European Parliament and the Council to guarantee a full public access to European documents, according to the transparency principle.”
See also Letter from the Grand Committee of the Finnish Parliament (pdf)
EU: ACCESS TO EU DOCUMENTS – FINLAND: Commission proposals would “constitute a backward step”: Ministry of Justice, Finland, Press Release (pdf)
“If adopted in the proposed form, the proposal, however, would be more restrictive than the current rules on access to documents. The Commission proposes to exclude some document categories totally from the scope of implementation of the Regulation. The Commission also proposes that documents be accessible to the public only if they are registered and meet certain technical requirements….
The Government finds that the regulation on access to documents has worked well on the whole and that there is no reason to change its fundamental principles. The Commission proposal would, if adopted as such, constitute a step backwards.”
and Opinion of the Grand Committee in the Finnish Parliament (pdf)
“The Grand Committee emphasises that if approved, the Commission’s proposal would lead to a major reversal of the Union’s transparency and the public’s access to documents. The proposal is thus in contradiction to goals that have been repeatedly affirmed by the European Council.
The Grand Committee considers it worrying and reproachable that the Commission has advanced in support of its proposal justifications that must be considered untrue and misleading. Such conduct is liable to weaken the Commission’s public credibility.”
EU: Statewatch analysis: Proposals for greater openness, transparency and democracy in the EU (pdf) by Professor Steve Peers, University of Essex.
“The European Union’s titanic treaties keep hitting the icebergs of public opinion. Despite some undoubted improvements in ensuring openness and transparency in the EU since 1991, there is still a widespread and justified perception that:
– the EU’s activities are too secretive and convoluted,
– the EU does not listen enough to the general public or organised civil society; and
– there is too little control of the activities of the EU by the public, and in particular there is insufficient control of EU actions by directly elected parliaments….
The steps toward further openness, transparency and democracy in the European Union outlined in this analysis could largely be taken separately from any initiative relating to ratification of the Treaty 0f Lisbon.”
EU: Access to documents in the EU: When is a “document” not a “document”? (pdf) Analysis by Tony Bunyan.
The European Commission has put forward a number of changes to the Regulation on access to EU documents adopted in 2001. Controversially it proposes to change the definition of a “document” which in turn affect which would or would not be listed on its public register of documents. Does this have anything to do with the fact that the European Ombudsman has just ruled that the Commission must abide by the existing definition of a “document” in the Regulation and that it must list all the documents it holds on its public register?
EU: ACCESS TO DOCUMENTS REGULATION: Outcome of Proceedings: Procedure to be followed for the review of Regulation (EC) No 1049/2001 (pdf) The Swedish delegation wrote to all the Permanent Representations asking that the proposal be examined by an ad hoc working party set up specifically for that purpose. It pointed out that “as constituted at present the Working Party on Information had neither the expertise nor the time necessary for the examination of the proposal”. Moreover:
“as a general rule it was not appropriate for the same authority both to chair the body responsible for the preparation of a legal act (the Council General Secretariat in the present case) and to implement that act (the Council). “
This was an attempt to shift the lead role in setting the agenda and conducting negotiations from the Council’s permanent General Secretariat to the Council Presidency (ie: a member state government). Though the Antici Group did not agree to set up an ad hoc working party it did take overall control away from the Council General Secretariat – decisions on contacts and consultations would be agreed jointly by the Council Presidency and the Chair of the Working Party on Information and that negotiations with the European Parliament would be conducted by the Chair of COREPER (the Head of the permanent Brussels-based representation of the member state holding the Council Presidency).
Note: The Antici Group (named after its Italian founder) is made up of assistants to the Permanent Representatives and a Commission representative, a member of the Secretary-General’s Private Office and a member of the Council Legal Service. The Group is responsible for deciding on the organisation of Coreper II proceedings. The meeting, which usually takes place on the afternoon before Coreper, is chaired by the Presidency ‘Antici’.
EU-FOI: European Ombudsman Open Letter to Commissioner Wallstrom (European Voice) on access to EU documents:
“You defend the Commission’s new definition of “document” by explaining that documents drawn up by the institutions are documents as soon as they have been sent to their recipients or otherwise registered. But in fact, the Commission’s proposal does not say “sent to their recipients”, but “formally transmitted to one or more recipients” (my emphasis).”
UK House of Commons European Scrutiny Committee: Draft Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents (link)
EU Transparency Proposal Criticised by Sweden (link)
EU: European Data Protection Supervisor: Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Press release plus Opinion, pdf)
EU: FOI-ACCESS TO DOCUMENTS: Statewatch Analysis June 2008: Proposal on access to documents: Article-by-Article commentary (pdf) Analysis of the Commission’s proposed changes to the Regulation on access to EU documents (1049/2001) by Professor Steve Peers, University of Essex.
Commissioner Wallströms hits back at critics: ”They can’t have read the text” (Wobbing. link). Report by by Staffan Dahllöf.
Tony Bunyan, Statewatch editor comments: “The idea that Statewatch, and Steve Peers who represented us at the hearing in the European Parliament on 2 June, had not read the text is sheer nonsense. We have worked on access to EU documents for over 15 years and we know how the current definition of a “document” works in practice – and it works fine. The only institution which does not like the definition is the Commission. In response to Statewatch’s complaint to the European Ombudsman, over its failure to put all its documents on its public register, the Commission President repeatedly rejected the definition of a document in the Regulation as being too wide”.
European Ombudsman, P. Nikiforos Diamandouros, called on the European Parliament (EP) to defend the European Union’s commitment to transparency and the citizens’ right of access to EU documents at a public hearing in the EP’s LIBE Committee (Civil Liberties, Justice and Home Affairs), the Ombudsman said: “The Commission’s proposals would mean access to fewer, not more, documents. This raises fundamental issues of principle about the EU’s commitment to openness and transparency.”
Press release (pdf) and Full-text of speech (pdf)
EU: REGULATION ON ACCESS TO EU DOCUMENTS: EU transparency proposal criticised by Sweden (euobserver, link) and Swedish Journalist’s Association considers draft EU-law ‘disgraceful’ (Wobbing, link)
Comments on the definition of a “document” in the Commission proposal: Back to the age of the “dinosaurs”? by Tony Bunyan, Statewatch editor, who comments:
“The Commission does not like the current definition of a document so it is proposing to change it to severely limit its scope. The current definition of a document must be left unchanged.
Nor does the Commission like the current Article 11 obliging it to list “without delay” all documents on its public register – which since 2002 it has failed to do – so the new definition of a “document” would allow it to carry on only listing a fraction of the documents it produces and receives.
At a stroke the the new era of openness and transparency promised in the Amsterdam Treaty would be dealt a fatal blow and we will be back in the age of the “dinosaurs”. “
Note on “dinosaurs”: The forces for secrecy in the EU – were referred to by Mr Söderman, then the European Ombudsman, at a Conference in Brussels on 26 April 1999 as the “dinosaurs” – who under the cloak of implementing the Amsterdam Treaty wanted to turn the clock back so that the institutions could control what documents are released.
EU Ombudsman launches EU-wide consultation on access to databases: Press release, Letter, Statement, and the Original Complaint (pdfs)
“The European Ombudsman, P. Nikiforos Diamandouros, has launched a consultation process within the European Network of Ombudsmen on access to information contained in databases. This follows a complaint from a Danish journalist about the refusal of the European Commission to disclose data on beneficiaries of EU agricultural subsidies. The Commission justified its refusal on grounds of confidentiality. Furthermore, it argued that the EU’s rules on access to documents apply to databases only if the data can be easily retrieved.
The Ombudsman was not convinced by this approach. He therefore contacted his colleagues in the Member States to find out about “best practices” at the national level aiming to ensure maximum public access to databases. This consultation is particularly important given that this issue at stake forms part of the current debate on the reform of the EU’s rules on access to documents.”
EU: FOI IN THE EU: Revised and Updated: Statewatch analysis of the proposed changes to the Regulation on access to EU documents by Tony Bunyan with additional comments from Steve Peers, May 2008.
EU: FOI IN THE EU: Should there be a Freedom of Information Act for the EU? (European Citizens Action Service,pdf) Brussels criticised on access to documents law (euobserver, link) The European Commission proposes to improve public access to documents of the EU institutions (Commission press release, pdf)
Tony Bunyan, Statewatch editor, comments:
“Mr Barroso says “the access to document rules are working well. These changes seek to improve the access to documents for European citizens”. While Commissioner Wallstrom says “Access to documents is an essential tool for democracy and now we want to improve it”.
The rules on access are not working well and these changes will takes us several steps backwards. For example, the Commission does not agree with the definition of a “document” in the Regulation, so it wants to change it. The Commission’s public register of documents is a joke so now it wants to change the rules. There would be a longer list of exceptions to refuse access, including mandatory exceptions where applications do not even have to be considered. And would leave in place the rule which allows the institutions to deny access to documents on measures about to be adopted in Brussels – a practice that would never be tolerated at national level.
The Amsterdam Treaty was agreed 11 years ago (1997) and was meant to herald a new era of openness and transparency – we only got half of the loaf and have been waiting for the other half, now the Commission wants to takes away some of this.”
– Viewpoint by Tony Bunyan: More openness or just a drop in the ocean? The need for Freedom of Information in the EU
– The right to know or the right to try and find out? The need for an EU freedom of information law, by Ben Hayes
– “Unaccountable Europe” by Tony Bunyan
Exclusive: Commission proposals to amend Regulation on access to EU documents: Statewatch analysis:
Tony Bunyan, Statewatch editor, comments:
“The scope of the Commission’s amendments and its consultation do not consider many of the fundamental questions posed by civil society and the European Parliament.
Perhaps the most crucial is the public’s right to know what is being discussed before it is adopted in Brussels – a practice that would never be tolerated at national level.
The Amsterdam Treaty was agreed 11 years ago (1997) and was meant to herald a new era of openness and transparency – we are still waiting for this to happen.”
Documentation: NB based on old version – see above for final version and EM:
– Adopted version: Explanatory Memorandum and Annotated text
– Penultimate version: Commission proposals – Consolidated text
– Penultimate version: Commission Explanatory Memorandum
– Penultimate version: Memorandum to the Commission
– Penultimate version: Table comparing current text to proposed changes
European Commission
– Adopted proposal: Explanatory Memorandum and Annotated text
– Annex a non paper drafted by the Commission services (EU doc no: 17484/08)
European Parliament
– European Parliament: 12.5.10: Draft EP report (Rapporteur: MIchael Cashman MEP). Earlier Draft report (Rapporteur: MIchael Cashman MEP): Draft report on amending the Regulation (22.3.10, pdf). Statewatch Comments on this draft (pdf)
– European Parliament’s Legal Service: Opinion on the EPs’ amendments
– Resolution on Commission proposals as adopted on 11 March 2009 (pdf): Rapporteur: Michael Cashman MEP and Consolidated version of 11 March Resolution
– European Parliament’s Civil Liberties (LIBE) report proposing amendments to the Commission’s proposals (19.2.09, pdf) plus Consolidated text showing changes to Commission proposals in EP report (pdf) and Statewatch analysis: Proposed amendments to Michael Cashman’s report on the Regulation on public access to EU documents (pdf) by Professor Steve Peers, University of Essex..
– Statewatch Analysis June 2008: Proposal on access to documents: Article-by-Article commentary (pdf) Analysis of the Commission’s proposed changes to the Regulation on access to EU documents (1049/2001) by Professor Steve Peers, University of Essex.
– European Parliament’s Civil Liberties (LIBE) report proposing amendments to the Commission’s proposals (19.2.09, pdf) plus Consolidated text showing changes to Commission proposals in EP report (pdf)
– Marco Cappato: Working document no 1: on 2006 annual report on access to EU documents: Rapporteur (22.8.07)
– Michael Cashman Report: Access to the institutions’ texts: European Parliament resolution with recommendations to the Commission on access to the institutions’ texts
Council positions
– EU doc no: 12492/09 (pdf)
– EU doc no: 10859/1/09
– EU doc no: 10859/09
– EU doc no: 10297/09
– EU doc no: 10443/09
– EU doc no: 9716/09 (11.05.09, pdf).
– EU doc no: 9234/09 (8.5.09, pdf)
– EU doc no: 8751/09 (dated 16.4.09, pdf) and EU doc no: 8778/09 (dated 17.4.09, pdf).
– EU doc no: 7971/09 (20.3.09, pdf)
– EU doc no: 5671 Rev 1 2009 (dated 4.3.09, pdf)
– EU doc no: 6856/09 (dated 24.2.09, pdf)
– EU doc no: 5671-09 (pdf)
– Proposals by Member States: Austria, UK and Germany: EU doc no: 16338/08
– Procedure to be adopted in the Council: Procedure to be followed for the review of Regulation (EC) No 1049/2001
regarding public access to European Parliament, Council and Commission documents (EU doc no: 13002/08) “in a spirit of compromise”: reaction to a proposal by Sweden (which will hold the Presidency in the 2nd half of 2009) giving the Council Presidency a right to be involved in the development of the Council position alongside the Working Party on Information.
European Ombudsman
European Ombudsman: European Parliament (EP): Hearing 2 June 2008:
Press release (pdf) and Full-text of speech (pdf)
European Data Protection Supervisor
Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Press release plus Opinion, pdf)
Civil society comments and critiques
– Statewatch analysis: The Treaty of Lisbon and EU Openness and Transparency (pdf) by Professor Steve Peers
– EU: Regulation on access to EU documents: Journalists angry over the European Parliament’s views on transparency – Swedish Union of Journalists
– European Environmental Bureau (EEB): MORE TRANSPARENCY OR MORE RESTRICTED ACCESS TO DOCUMENTS – WHAT WILL WE GET? from Metamorphosis Newsletter of the European Environmental Bureau, February 2009
– EU: FOI in the EU: When is a “document” not a “document”? (pdf) Analysis by Tony Bunyan. The European Commission has put forward a number of changes to the Regulation on access to EU documents adopted in 2001. Controversially it proposes to change the definition of a “document” which in turn affect which would or would not be listed on its public register of documents. Does this have anything to do with the fact that the European Ombudsman has just ruled that the Commission must abide by the existing definition of a “document” in the Regulation and that it must list all the documents it holds on its public register?
– Statewatch Analysis June 2008: Proposal on access to documents: Article-by-Article commentary (pdf) Analysis of the Commission’s proposed changes to the Regulation on access to EU documents (1049/2001) by Professor Steve Peers, University of Essex.
– Comments on the definition of a “document” in the Commission proposal: Back to the age of the “dinosaurs”? by Tony Bunyan, Statewatch editor
– Statewatch analysis of the proposed changes to the Regulation on access to EU documents by Tony Bunyan with additional comments from Steve Peers, 20 May 2008
– ECAS Report on the hearing in the European Parliament on 2 June 2008
– Statewatch Analysis June 2008: Proposal on access to documents: Article-by-Article commentary (pdf) Analysis of the Commission’s proposed changes to the Regulation on access to EU documents (1049/2001) by Professor Steve Peers, University of Essex.
Background documentation
Documentation
– Proposed amendments by the European Commission: Explanatory Memorandum and Annotated text(pdf)
– April 2008: Penultimate version: Commission proposals – Consolidated text
– Commission Public consultation website (2007)
– Green Paper (April 2007)
– Submission to the consultation (link)
– Commission summary of the results of the consultation (pdf)
– Regulation 1049/2001/EC Regulation 1049/2001/EC (pdf): in operation since 2001 and ongoing
– 1993 Code of access to Council and Commission documents, 20.12.93
Full background documentation since 1993 is available on our Observatory: Freedom of Information (FOI) in the EU this includes: Key texts: Resources on EU access to documents, Analyses and critiques, Observatory on the adoption of Regulation 1049 and an online “book”: Secrecy and openness in the European Union – the ongoing struggle for freedom of information by Tony Bunyan (covering the period 1993-2003). Contributions should be sent to: office@statewatch.org
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© 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.
Access to EU documents
The struggle for openness
Statewatch Observatory on the adoption of Regulation 1049/2001/EC
This “Observatory” tracks the progress of the new measure to put into effect Article 255 of the Amsterdam Treaty to “enshrine” the citizens’ right of access to documents from the Council of the European Union, the European Commission and the European Parliament. The measure has to be agreed by these three insitutions under the co-decision procedure.
The “Observatory” has five sections: “Current drafts on the table” and (A) the current Decisions on public access to EU documents and the Commission proposal(s) (B.1) reports from the European Parliament committees (B.2) European Parliament vote on 1st reading report (C) proposals by the Council (D) critiques and comments by civil society.
This “Observatory” now represents an archive of the legislative process leading to the adoption of the new Regulation.
Final version of the new EU code of access to documents: Netherlands court case withdrawn & European Parliament negotiating over access to classified documents: New Regulation (html) New Regulation (pdf file)
Final “compromise” text adopted by the European Parliament (3.5.01) and the Council of the European Union (14.5.01): Full-text
COMPROMISE/COMMON TEXT
The “compromise/common text” agreed between the Council, the Commission and the European Parliament’s Committee on Citizens’ Freedoms and Rights will be discussed in the parliament’s plenary session on Wednesday, 2 May and voted on 3 May. The new Regulation is a combination of the Commission’s original proposal as amended by the parliament’s report:
Commission’s proposed Regulation on public access to documents (2nd version, 21.2.00): Text (html)
Amendments to the Commission proposal by the parliament: Text (Word 97, dated 25.4.01)
Critique from civil society of the compromise Regulation: Text (html)
FINAL DRAFTS “ON THE TABLE”
The “compromise/common texts” of the Council and the EP delegation:
Council version of “common text”: Council (pdf) Council (html)
Cashman (PSE)/Maij-Weggen(PPE) version of “compromise/common text”: Text (11.4.01, Word 97) Text (17.4.01, pdf)
Amendments to the amendments: 19.4.01: Cashman (PSE)/Maij-Weggen(PPE): Text (Word 97)
Comments on the amendments: More compromises
Amendments to the “compromise/common text”
Amendments to the “compromise text” from the Green/EFA group and the ELDR (Liberals): Amendments (Word 97)
The view of civil society
The position of Statewatch, the European Federation of Journalists (EFJ), European Citizens Action Service (ECAS), European Environmental Bureau (EEB) Professor Deirdre Curtin, Utrecht University and a member of the Standing Committee of Experts (“The Meijers Committee”, Utrecht) and Ulf Oberg, Stockholm University: Critique of the “Brussels stitch-up” (html)
Do the proposed “common text” agreed by the Council and the EP delegation lower current standards?
Analysis by Steve Peers, Reader in Law, Human Rights Centre, University of Essex: Lower standards
Draft Council common position
11.4.01: Common text with the Cashman/Maij-Weggen text (version 2 of this draft): Text (Word 97)
4.4.01: Common text with Cashman/Maij-Weggen text of 5.4.01: Text Critique This draft Council position would also significantly undermine rights available under the current code of access to EU documents. The European Parliament’s representatives have consistently said they would not support any proposal which undermine current rights. Analysis: Council draft position undermines existing rights
Current draft of the European Parliaments‘ 1st reading position:
Version 6: Cashman/Maij-Weggen(PSE/PPE) report (Word 97) 11.4.01
Version 5: Cashman/Maij-Weggen(PSE/PPE) report (pdf) 5.4.01
Version 4: Cashman/Maij-Weggen (PSE/PPE) report (Word 97). 22.3.01. Critique of report: Critique
First “trilogue” series comparison of texts on the new code from each of the three institutions
NB: the comparative table on SN 1296 contains the text of the European Parliament’s report adopted on 16 November 2000, the European Parliament’s position in SN 1652 and SN 1715 contains the European Parliament’s “compromise” text. With the breakdown of the “trialogue” discussions the parliament has reverted to its original position in SN 1296.
Comparison of the three drafts as at 19.1.01: SN 1296 (pdf file) SN 1296 (Word 97)
Comparison of the three drafts as at 13.2.01: SN 1652 (Word 97)
Comparison of the three drafts as at 15.2.01: SN 1715 (pdf file) SN 1715 (Word 97)
To date there have been four versions of the parliament’s report. The latest, dated 20 February, is “on the table” of the Committee for Citizens’ Freedoms and Rights:
Ver 3:Cashman/Maij-Weggen (PSE/PPE) report (Word 97, 20.2.01) Critique of report: Critique
Ver 4: Cashman/Maij-Weggen (PSE/PPE) report (Word 97, 22.3.01) Critique of report: Critique
A. The current Decision(s) and the Commission’s proposal(s)
Decision 93/731, December 1993: 1993 Council Decision
Decision 2000/23, December 1999: 1999 Decision
Decision 2000/527, adopted August 2000: 2000 Decision Background to this Decision: Background
Commission’s “unpublished” discussion papers, 22.1.99 and 23.4.99
Commission’s unpublished and leaked drafts of proposal: 22.10.99 and 29.11.99
Commission’s proposed Regulation on public access to documents (1st version, 26 January 2000): Jan 2000
Commission’s proposed Regulation on public access to documents (2nd version, 21 February 2000): Feb 2000
B. 1. Reports from the European Parliament’s committees
The lead committee in the European Parliament is the Citizens’ Freedom and Rights Committee. Five other committees will be adopting “opinions” on the proposed new measure which will be submitted to the lead committee for it to take into consideration before adopting its final report. This final report will go to a plenary session of the full parliament. After this the Council will make its views known on the Commission’s proposal. The Commission can amend its proposal at any time and would respond to the EPs’ and Council positions. The measure, as revised by the Commission, then goes back to the parliament.
Citizen’s Freedom and Rights Committee (rapporteur: Michael Cashman)
1st draft report: Cashman (“rtf” format)
2nd draft report: now a “Common Position” between Cashman (PSE) and Maij-Weggen (PPE) for this Committee and the Committee on Constitutional Affairs: Cashman/Maij-Weggen 3rd draft, 15.9.00: Cashman/Maij-Weggen2 (Word97)
Amendments proposed to the Cashman/Maij-Weggen report (2) for the meeting on 23 October:
Amendments (PDF format) Amendments (Word 97)
Cashman/Maij-Weggen report adopted by the Committee on 23.10.00 which now goes to the EP’s plenary session on 15 November: Cashman/Weggen-final (Word 97) Statewatch’s proposed amendments to this report in line with improving citizens’ right of access to EU documents: Statewatch
Committee on Constitutional Affairs (rapporteur: Hanja Maij-Weggen)
1st Draft report: Maij-Weggen (PDF format) Adopted report, 18.10.00: Maij-Weggen2 (Word 97)
Legal Affairs and Internal Market Committee (rapporteur: Heidi Hautala)
Draft report: Hautala Report adopted unanimously 10 October with minor amendments: Hautala2 (PDF format)
Culture Committee (rapporteur: Ole Andreasen)
Draft report: Andreasen (PDF format) Report adopted 10 October: Andreasen2 (PDF format)
Petitions Committee (rapporteur: Astrid Thors)
Draft report: Thors (PDF format) Report adopted on 10 October: Thors2 (PDF format)
Foreign Affairs Committee (rapporteur: Cecilia Malmstrom)
Draft report: Malmstrom (PDF format) Report adopted 10 October with major changes deleting amendments for more openness: Malmstrom2 (PDF format)
Committee on Budgetary Control (rapporteur: Diemut Theato)
Draft report: Theato (PDF format) Adopted report: Theato2 (Word 97)
B. 2. European Parliament plenary vote on 1st reading report
European Parliament vote on report on access to documents on 16 November: Full list of amendments, voting list and analysis: EP vote
European Parliament “has ignored civil society” plus full-text of the report adopted: Report
European Parliament adopt report on access to EU documents – but what happened to citizens’
rights?: EP vote, where now?
C. The Council’s proposals on the new measure
6th version: new draft date (29.1.01): New draft
5th version: draft (dated 22.12.00): New draft (pdf)
4th version: draft (dated 18.12.00) of Council’s common position leaves the incoming Swedish Presidency with a difficult job: New draft
3rd version (dated 1.12.00) “Solana Decision” extended to cover justice and home affairs, trade and aid: “Solana Two Decision”
2nd version of draft common position: Solana Decision” back on the agenda (28.11.00): “Solana Two”
1st version: Council’s draft position on access to documents, full-text and analysis: Council
Survey shows which EU governments back openness, which do not: Openness survey (29.11.00)
D. Critiques and commentaries by civil society
Speech by Tony Bunyan, Statewatch editor, to the “hearing” in the European Parliament on 18 September: Talk
Statewatch: Amendments to Commission proposal Analysis
European Environment Bureau: EEB
European Federation of Journalists: EFJ
Select Committee on the European Union, House of Lords, UK: Report
European Federation of Journalists publishes “Essays for an Open Europe“, which argue that civil society needs to join in the debate on access to EU documents: Essays
Support the “Call for an Open Europe”
Access to documents in the EU is not a “gift” from on high to be packaged, sanitised
and manipulated, it is a “right” which is fundamental in a democracy.”
– Tony Bunyan, Deirdre Curtin and Aidan White, Introduction to “Essays for an Open Europe”
The “Call for an Open Europe” was launched by the European Federation of Journalists (EFJ) and Statewatch in 2000 as part of the campaign for openness during the negotiations on the Regulation on public access to EU documents.
It was lauched in conjunction with “Essays for an Open Europe” and “a code for civil society“
The Call remains open and you are encouraged to sign-up below and show your support for the ongoing campaign for full freedom of information in the European Union.
Italiano: Appello per “un’Europa aperta” Deutsch: Appell für ein “Offenes Europa”
Supporters of Statewatch’s work on access to EU documents
I/We support the call to EU institutions for a democratic and accountable “Open Europe” on access to documents – see who has already signed up
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To send by post or fax please print out this form. By post to:
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Statewatch: Call for an Open Europe – 2012
“Access to documents in the EU is not a “gift” from on high to be packaged, sanitised and manipulated. It is a “right” which is fundamental in a democracy”: Tony Bunyan, Deirdre Curtin and Aidan White in Essays for an Open Europe
That was in 2000, now in 2012 the right of access to EU documents is under great threat again
To Sign up for the “Call for an Open Europe”:please send an e-mail to: office@statewatch.org giving the name of your organisation with “CALL” in the subject line and we will keep you in touch with all the developments
EU: REGULATION ON ACCESS TO DOCUMENTS: Council of the European Union: Latest draft Council position to be discussed in the Working Party on Information on Friday 8 June (dated 4 June 2012, pdf) Statewatch analysis of this latest draft of the Access to Documents Regulation by Steve Peers, Professor of Law, Law School, University of Essex. He concludes that the latest draft would result in a VERY SIGNIFICANT drop in standards as compared to the status quo, and that under no circumstances should the EP agree with this text as it stands.
EU: Statewatch Analysis: Access to EU documents: Article-by-Article commentary, ‘Red Lines’ for the negotiations, and the undemocratic recast procedure (pdf) by Steve Peers, Professor of Law, Law School, University of Essex.
On 10 May 2012, the Danish Presidency of the Council put on the agenda of Coreper (the EU body consisting of Member States’ representatives to the EU) a draft deal on the proposed Regulation on access to documents. This deal, if agreed, would constitute the Council’s position for negotiations with the European Parliament (EP), which has joint decision-making powers on this proposal. This analysis examines the draft deal on an article-by-article basis and concludes:
– The draft position of the Council constitutes a significant overall reduction in the level of access to documents.
– In particular, the council’s definition of a ‘document’ is of doubtful legality and would exclude massive numbers of documents from the scope of the rules.
– The EP should not accept the Council proposal in its present form, or any variation thereof which would significantly reduce current standards.
– In particular, the EP should make clear to the Council that it cannot in any circumstances accept the proposed definition of a ‘document’. If the Council is adamant on including this definition, the EP should instantly veto the proposal.
– The Commission’s decision to present negotiations in the form of a ‘recast’ – a profoundly undemocratic and indeed surely illegal procedure – has prevented the EP from pressing for most of the changes it has unanimously voted for.
– The EP and the Council should immediately denounce the pernicious and illegal Inter-institutional Agreement on the recasting of EU Acts.
EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Council seeks to re-write the definition of a “document” after 19 years: Recast of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (first reading) – Preparation of informal trilogues (pdf). Since 1993 the definition of a “document” has been that a: “document shall mean any content whatever its medium” and this is in the current Regulation. However, the Council intends to keep this general definition (Article 3) but to add Article 3a: “Documents subject to this Regulation”: which says a document becomes subject to this Regulation (ie: the whole Regulation) when: “it has 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” (emphasis added) In simple terms a “document” is only really a “document” when it is finalised (all the drafts and discussion prior to this are not “documents”) – this is the same definition, which was widely criticised, first put forward by the Commission in 2008. .
The double-faced language of the Council position means also that while it appears in Article 12 that documents concerning legislative and non-legislative acts: “shall, subject to Articles 4 and 9, be made directly accessible to the public” they are still subject to the general rule in Article 3a above. It would thus negate Articles 15.1 and 15.3 para 5 of the Lisbon Treaty.
Tony Bunyan, Statewatch Director, comments:
” In 1997 the Amsterdam Treaty promised to “enshrine” the public’s right of access to EU documents but in 2001 we only got half the cake. If the Council and the Commission get their way we will be left with just a few crumbs [small fragments]. Access to documents is the life-blood of a healthy, vibrant, democracy which encourages informed consent and dissent. Instead the Council wants an unaccountable democracy bereft of content and meaning.”
EU: REGULATION ON PUBLIC ACCESS TO DOCUMENT: Statewatch challenges Council secrecy on access to EU documents on the revision of the Regulation: Letter from the Council refusing access to three documents concerning the Council’s discussions on revising the Regulation on access to EU documents (pdf) in response a: Confirmatory application by Tony Bunyan, on behalf of Statewatch (pdf)
The Council had hidden three crucial documents and claimed that access could not be given because 1) It would “prejudice Council’s capacity to conduct frank and candid discussions”. In other words to meet in secret as a legislature under the so-called “space to think” (under Article 4.3 of the Regulation on acces to documents) see: The case for the repeal of Article 4.3 2) The Council then claims that there was an “absence of any element suggesting an overriding public interest” in dislcosure – it is hard to think of an issue on which the public’s right to know what is being discussed manifestly outweighs the need for secrecy. 3) The Council concludes by saying that access may to given “after the the final adoption of the act” – subject still to Article 4.3 para 2.
Tony Bunyan, Statewatch Director, comments:
“The notion that the wish of a legislature to meet in secret (by failing to release the documents being discussed) outweighs the public interest of the citizens on such a fundamental issue, namely the right to know what is being discussed and proposed in a legislative process in order to know and allow for public debate, has no place in a democracy worthy of the name.”
Statewatch has been working on access to EU documents since 1992 and has lodged ten successful complaints against the Council of the European Union (the EU governments) and the European Commission. Statewatch maintain extensive background information on a series of Observatories:
– Observatory: the Regulation on access to EU documents: 2008-ongoing (All the latest News and documents on the current negotiations on the revision of the Regulation
– FOI in the EU – with all the developments
– Secret Europe – reporting on secrecy and openness in the EU (historical archive)
– Observatory on public access to EU documents: on the struggles between 1999-2001
– Key texts
– Analyses and critiques
To Sign up for the “Call for an Open Europe”:please send an e-mail to: office@statewatch.org giving the name of your organisation with “CALL” in the subject line and we will keep you in touch with all the developments
How to obtain or apply for documents in the EU
There are three ways to get documents from the main EU institutions – the European Commission, the Council of the European Union and the European Parliament: i) by applying in writing/fax/e-mail to the institution; ii) searching the institutions’ public register of documents (currently only the Council has such a register, the Commission and European Parliament have until June 2002 to provide one) or iii) searching the main website of the institution.
European Parliament (link to the EP’s home page) or contact: The Secretariat, European Parliament, Rue Wiertz, B.P.1047, B-1047, Bruxelles, Belgium tel: 00 32 2 284 21 11 fax: 00 32 2 284 90 75
Commission (link to Commission’s page on access to documents) or contact: Secretariat-General of the European Commission, Unit SG/C/2 “Europe and the Citizen 1”, N-9, 2/11, rue de la Loi/Wetstraat 200, B-1049 Bruxelles, Belgium
Council (link to the Council’s page on access which includes link to its public register of documents) or contact: The Secretary-General, Council of the European Union, 175 rue de la Loi, B-1048, Bruxelles, Belgium or e-mail: access@consilium.eu.int
If you need help or advice please contact: Statewatch by writing to: Statewatch, PO Box 1516, London N16 0EW, UK or you can ring us on: 00 44 208 802 1882 or send an e-mail to: office@statewatch.org
Back to Freedom of information in the EU
Sources on freedom of information
UK
Campaign for Freedom of Information: http://www.cfoi.org.uk/
FOI Act: http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000036_en_1
List of public authorities: http://www.dca.gov.uk/foi/yourRights/publicauthorities.htm
Information Commissioner’s Office: http://www.ico.gov.uk/
European
EU Regulation on access to documents: http://www.statewatch.org/news/2001/jul/newregoj.pdf
Statewatch:
– FOI in the EU: http://www.statewatch.org/foi/foi.htm
– Observatory on access to EU documents: 2008-2009: http://www.statewatch.org/foi/observatory-access-reg-2008-2009.htm
– Secrecy and Openness in the European Union, by Tony Bunyan (online book):
http://www.statewatch.org/secret/freeinfo/index.html
Council of Europe
The Council of Europe’s draft Convention on Access to Official Documents: (*)
http://www.access-info.org/
Note: Sub-paragraph k: Sub-paragraph k provides for the possibility of limiting access to official documents with the aim of protecting confidentiality of proceedings within or between public authorities concerning the examination of a matter. The word “matter” is wide enough to cover all kinds of issues dealt with by the public authorities, that is, individual cases as well as procedures for political decision-making. It should be noted that, even if the aim of the Convention is to encourage public participation in decision-making, the purpose of this limitation is to preserve the quality of the decision-making process by allowing a certain free “space to think”.
USA
National Security Archive: FOI: http://www.gwu.edu/~nsarchiv/nsa/foia.html
International
Article 19: Global campaign for free expression
Search results on FOI: http://www.article19.org/search-results/index.html?freetext=foi
Privacy International: Freedom of Information
Freeedom of Information Advocates Network: http://www.foiadvocates.net/
Access Info: http://www.access-info.org/
freedominfo.org: http://www.freedominfo.org/
Our work
Statewatch
Working for openness and democracy in the EU since 1992
Statewatch has been applying for EU documents concerning justice and home affairs policy and reporting on openness, secrecy and access to documents since 1992.
Tony Bunyan, Statewatch editor, is the author of Secrecy and openness in the EU (Kogan Page, 1999). An updated, online version of this book was produced in 2003 with the support of the National Security Archive.
Establishing new rights for everyone
By 1998, Statewatch had submitted eight complaints against the EU Council concerning public access to its documents to the European Ombudsman. As a result of Statewatch’s complaints, the right of the Ombudsman to investigate secrecy complaints was written into the Amsterdam Treaty together with a commitment to “enshrine” the public’s right of access to information in an EC Regulation.
Two more complaints were submitted by Statewatch in 2007, this time against the Commission’s failure to meet its obligations concerning public access to its documents.
Campaigning for openness and transparency
During the negotiation of the draft Regulation on public access to EU documents, which was adopted in 2001, Statewatch led a coalition of NGOs in a campaign for openness and citizens’ rights.
The “Call for an Open Europe” was launched by Statewatch and the European Federation of Journalists in 2000. It is supported by hundreds of groups and individuals across Europe.
Awards for Statewatch
In 1998 the Campaign for Freedom of Information gave Statewatch an Award for its work on fighting for EU openness (access to documents)
In 2001 the European Information Association gave Statewatch the “Chadwyck-Healey Award for achievement in European Information” for its work on openness and the new code of access to EU documents.
In 2001 Tony Bunyan, Statewatch editor, was selected by a distinguished panel as one of the “EV50” – the fifty most influential people in the European Union over the year in recognition of Statewatch’s work on access to documents in the EU. The EV50 is organised annually by the European Voice newspaper in Brussels.
You can support Statewatch’s work by making a donation or taking out a subscription: click here
For further information send an e-mail to: office@statewatch.org or telephone +44-20-8802-1882
1999-2007: Secret Europe: reporting on secrecy and openness in Europe
Statewatch has reported on openness, secrecy and access to documents in the European Union since 1992. Statewatch has lodged eight successful complaints with the European Ombudsman against the Council of the European Union over access to documents.
Statewatch has won two awards for its work on openness in the EU from: the Campaign for Freedom of Information, the European Information Association and in December 2001 Statewatch’s editor, Tony Bunyan, was selected by the European Voice newspaper as one of the 50 most influential people in the EU (EV50) for our work on openness. It nows run one of the most comprehensive site on these issues in the EU.
News on openness and secrecy is carried on this page and in addition Statewatch maintains three “Observatories”:
- Freedom of Information in the EU carries all the keys texts and background documents
- Observatory on Freedom of Information in the EU – Case law covers all cases in the European Court of Justice and the Court of First Instance with full-text of decisions
- Observatory on the adoption of the new Regulation on access to EU documents carries all the reports and documents produced by the Council of the European Union, the European Commission and the European Parliament during the discussions and adoption of the Regulation on access to EU documents (1049/2001).
Secrecy and Openness in the European Union by Tony Bunyan – online book detailing the history of access to documents in the EU, complaints to the European Ombudsman and the Court of Justice, and the struggles by civil society to get proper freedom of information
“Essays for an Open Europe”: Essays “Call for an Open Europe”: Sign up
EUROPEAN OMBUDSMAN: Statewatch wins complaint against the European Commission (full-story and documentation) The European Ombudsman has declared a case of maladministration against Commission for its failure to produce a 2005 annual report on access to documents in 2006 and found it “especially deplorable” as these reports are “a key mechanism for accountability”.
The European Ombudsman’s Decision says that:
“In the Ombudsman’s view, the reasons given by the Commission to explain its failure, which refer to administrative and organisational constraints, do not show that there was an objective impossibility for the Commission to comply with its legal obligation (ultra posse nemo obligatur)” and
“The Ombudsman considers that the instance of maladministration revealed by the present inquiry is especially deplorable since the publication of reports is a key mechanism of accountability to, and communication with, European citizens. The Commission should set a good example to the many new Community Agencies which have recently been established by giving high priority in future to the timely publication of reports.”
This is the first of two complaints lodged by Statewatch against the Commission. Previously Statewatch won eight complaints taken to the European Ombudsman against the Council of the European Union.
European Court of Justice: Court of First Instance: Council v WWF: The Council wins again, this time in defending its decision not to release a paper concerning the WTO and the environment. Again the application of the more detailed criteria for the application of the ‘international relations’ exception (as set out in the Kuijer II judgment) are ignored. Also, this is the first case which concerned the application of the exception for the EC’s ‘economic interests, etc.’. This exception is very broadly applied — it seems that it is sufficient for a document to concern the EC’s external trade for the exception to apply. Finally the CFI clearly distinguishes between access to information and access to documents — clearly undercutting the argument that there is no distinction between the two (para 76 of the judgment). Judgment – full text (pdf)
EU: Statewatch lodges two complaints against the European Commission with the European Ombudsman (press release, full-text, pdf – EMBARGOED until 12.00 on Thursday 19 April 2007)
– the Commission has failed to maintain a proper public register of documents with only a fraction of those produced listed
– the Commission failed to produce its annual report on access to documents for 2005 in the year 2006
– Statewatch says both are breaches of the Regulation and therefore cases of maladministration
Tony Bunyan, Director of Statewatch, comments:
“The European Commission is not above the law it is the custodian of EU law, responsible for ensuring it is properly implemented. This makes it all the more reprehensible that under the Regulation on access to documents the Commission has failed to maintain a proper register of documents and failed to publish an annual report for 2005.
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.
The European Commission must be called to account for its actions or rather its failures to act”
Also going out today for immediate release are:
- Statewatch Briefing Note on the Commission’s Green Paper on the Regulation on access to EU documents:
2. The full-text of the Commission’s Green Paper (penultimate version):
3. Statewatch’s Observatory on “FOI in the EU” has been re-designed and updated with many new features
Statewatch – Reporting on openness and secrecy in the EU since 1992
EU: European Citizens Action Service, Statewatch, International Federation of Journalists, European Environmental Bureau : Should there be an EU Freedom of Information Act? (pdf) Seminar, Brussels, Thursday 19 April 2007
EU: European Court of Justice rejects Sison appeal against denial of access to EU documents (Judgment in case C-266/05 P, 1.2.07, pdf). The European Court of Justice has rejected Professor Jose Maria Sison’s appeal against the EU Council’s decision to refuse access to the documents relating to his inclusion on the terrorist list. For full background see Statewatch’s “terror lists” observatory
Statewatch’s Observatory on EU Freedom of Information – Case Law now has a list and summaries of “Pending cases” in the Court of First Instance/European Court of Justice. As at the end of September there were 25 cases pending. Pending cases list
EU-NATO: Classified information:
- a) Exchange of EU classified information (EUCI) with third countries and organisations (8 September 2006)
b) EU: Council Decision adopting the Council’s security regulations (28 February 2001)
c) NATO: Security within NATO (17 June 2002) Thanks to FOI Advocates Network
EU: European Court of Justice: The Opinion on the Advocate-General in the case of Professor Sison (pdf) who is appealing to get access to the documents leading to him being placed on the EU terrorist list. The Advocate-General rejects his case.
Freedom of Information: The Manchester Declaration (pdf) Civil Society Organisations meeting in Manchester on the occasion of the 4th International Conference of Information Commissioners agreed this Declaration. It is signed by 28 NGOs.
EU: European Ombudsman issues critical report against the Council of the European Union which tried to hide documents from applicant: Press release (pdf) Full-text of decision (link). Having first denied the existence of more documents than admitted the Council claimed that due to a “clerical error” ten other documents not been located.
The right to know or the right to try and find out? The need for an EU freedom of information law, by Ben Hayes (pdf)
Spain: “Transparency and silence” report on freedom of information throws up alarming results
European Court of Justice (ECJ): For the first time since the Regulation on access to EU documents came into force in December 2001 an applicant has won a case in the ECJ against the Commission. The Court found that the Commission failed to examine and give reasons for each of the documents refused and failed to assess whether partial access could be given. This decision will help other applicants for documents as it is the Commission’s habit to simply refuse documents requested by citing a general exception to access without giving reasons of how this applies to each document: ECJ Press release (pdf)
EU: A small victory for openness: The European Commission has finally made available a full list of its expert groups (2004) (pdf) and a list of “Joint entities resulting from international agreements” (2004) (pdf). Press release from Jens-Peter Bonde MEP
UK:Freedom of information – Parliament’s Consitutional Affairs Committee. Concerns about the public sector’s readiness to comply with the new freedom of information law are today (7.12.04) raised in a report by the Constitutional Affairs Select Committee.The report, which provides a snapshot of public sector preparations, warns that with less than a month to go before some 100,000 public authorities are legally obliged to give the public a general right of access to information, preparedness for the new freedom of information (FoI) regime is patchy. 1) Press release 2) Full-text of report (pdf) 3) Full-text of the UK Freedom of Information Act (link) 4) Campaign for Freedom of Information (link)
EU openness: The EU’s Court of First Instance has decided that governments can veto access to documents originating from them and submitted to an EU institution (in this case the European Commission). Interestingly the applicant was supported by the Netherlands, Sweden and Denmark, while the Commission – in its refusal to give access – was supported by the UK. The Court’s judgement said: “the Commission was not required to explain why the Federal Republic of Germany had made a request under Article 4(5) of the Regulation, since there is no obligation on the Member States to state the reasons for such a request under that provision”. Judgement (link) (1.12.04)
Statewatch Observatory on EU Freedom of Information – Case Law: Updated (25.11.04)
(19.11.04) Council agrees levels of security co-operation with third States and international organisations (14400/04)
BUDVA DECLARATION: Declaration of Regional Seminar on Freedom of Information Budva, Montenegro, 9-10 September 2004. Participants in the Budva Regional Seminar on Freedom of Information discussed international standards for the right of access to information, in particular the legitimate exemptions to the release of information. The challenges of implementation of FOI laws were also discussed, including the need for training, awareness raising, litigation: Budva Declaration (pdf)
Denmark: Breakthrough in access to agricultural EU subsidies information: Denmark (link)
UNESCO have published a: “Comparative legal survey on Freedom of information”: UNESCO Survey (pdf)
European Court of Justice: Access to documents decision against the European Commission and the Council of the European Union: Press release
Building the new security regime – the EU-NATO-USA politico-military axis: EU agrees to exchange of classified documents on “crisis operations” including justice and home affairs issues: Report and documentation
EU annual reports on access to documents – still a very long way to go: Report
– less than 50% of Council documents available to citizens
– European Commission’s register of documents “a disgrace”
– speech by Tony Bunyan to the European Parliament
“It is ten years since the Code on access to Council and Commission documents was introduced in 1993 and it is six years since Article 255 in the Amsterdam Treaty allegedly “enshrined” the citizens’ right of access. Yet even now less than 50% of the contents of documents on the Council’s public register have been released and the Commission’s public register is absolutely useless. How much longer are we going to have to wait for freedom of information in the EU?”
EU cements deal with NATO on exchange of documents: Report
European Parliament: Public Hearing: EU transparency – access to documents: does it work? Programme
Transparency in the European Union still problematic: Report
Statewatch openness case leads to landmark decision – Council agrees to keep copies of all documents and to list them in “Outcomes” (Minutes): Report
European Journalists support Irish fight to maintain open government: Report
Irish Council for Civil Liberties condemn government changes to freedom of information law: Report (link)
On 12 February 2003 the Swiss Federal Council (government) submitted a draft for a new law on freedom of information to parliament. The text of the draft is available on:
http://www.ofj.admin.ch/themen/oeffprinzip/bot-d.pdf (german)
http://www.ofj.admin.ch/themen/oeffprinzip/bot-f.pdf (french)
European Ombudsman: Council tells student that legal opinion on openness should stay secret: Report
Mystery document appears on EU Council register: Report
“Secrecy and Openness in the European Union” by Tony Bunyan – a new case study from freedominfo.org: Press release
European Ombudsman calls on Commission to clarify data protection rules: Report
Denied EU document reveals issues of public interest: document refused on grounds it concerned the “campaign against terrorism” contains further far-reaching proposals on surveillance, particularly of immigrants, including: “preventive information gathering”: Report
European Ombudsman’s Annual Report: Report Sections on Statewatch’s cases against the Council of the European Union (the 15 governments) on access to documents: Statewatch (pdf)
European Ombudsman: EU Commission secrecy around Transatlantic Business Dialogue is “Maladministration”: Report (updated 18.7.02)
26 July 2000 – the day of the infamous “Solana Decision”- how did Mr Solana reply to a letter he had not received? Report
Statewatch complaints against the Council on access to documents goes before the European Parliament: Report
Very interesting site with lots of data on freedom of information in EU states:link
26 July 2000 – the day of the infamous “Solana Decision” – the Solana/Robertson exchange of letters: Report
European Ombudsman publishes code on administrative behaviour: Report
Council of the European Union disagrees on giving access to the public of positions taken by EU governments: Report
US government vetoes Statewatch access to EU-US agendas: Report
– Council of European Union says it has no choice but to back US veto
– Refusal of access follows two successful complaints to the European Ombudsman
– Decision would exclude from access any document on international policy vetoed by third parties
New EU Regulation on access to documents: Report
– the first major problem is going to be what will, and what not, be on the public registers of documents
– the second will be the exclusion of “internal documents”
– the third will be the right of “third parties” (like the US) to veto access to EU documents
European Ombudsman calls on the European Parliament to take action on the Council’s failure to release documents to Statewatch: Report (5.12.01)
European Commission publishes new security rules before its rules on the public’s right of access to its documents: Report
The new Regulation of public access to EU documents comes into operation on 3 December 2001
1.The new Regulation (1049/2001) on access to documents (pdf file)
2. Council’s new Rules of Procedure (adopted 29 November)
3. European Parliament report amending its rules of procedure (adopted 13 November)
The UK House of Lords Select Committee on the European Union has produced a report on the “Solana Decision” of July 2000: House of Lords report
European Parliament takes Council to court for failure to consult over new (NATO) classification code – the “Solana Two Decision”:Report Full-text: EU/NATO: Security Regulations (Word 97) Security Regulations (pdf)
Statewatch wins new complaints against the Council of the European Union: European Ombudsman decides access must be given to the agendas of the EU-US Senior Level Group and the EU-US Task Force: Decision
Statewatch launches Freedom of Information in the EU site with all the background news and documents on access to documents plus a new Observatory on case law: FOI
EU openness: Heidi Hautala MEP claims victory in secrecy court case: Opinion of the Advocate General
The first seminar on the new Regulation on access to EU documents is being organised by the Academy of European Law in Trier, Germany and Statewatch: Seminar
Final version of the new EU code of access to documents: Netherlands court case withdrawn & European Parliament negotiating over access to classified documents: New Regulation
Final “compromise” text adopted by the European Parliament (3.5.01) and the Council of the European Union (14.5.01): Full-text
Postcript to the vote on the new code of access to EU documents – “Call for an Open Europe” to continue: Postcript updated 16.5.01
European Parliament votes in favour of “deal” with the Council on access to EU documents – campaign for an open and democratic Europe to continue: EP vote
Leading civil society groups send “Open letter” to all MEPs asking them to reject the “deal” on access to EU documents on 3 May: “Open letter”
“Call for an Open Europe”: over two hundred sign up
Support for openness: from 72 individuals and organisations across the EU
Full-text of Commission’s original proposal and the amendments to it by the European Parliament (to be discussed on 2-3 May) which represents, when combined, the proposed new Regulation on public access to EU documents: Observatory
“Brussels stitch-up” agreed
– Council, Commission and EP Committee agree “compromise/common text”
– Civil society groups reject “deal” between Council and European Parliament
Press release: “OPEN LETTER from civil society on the new code of access to documents of the EU institutions” (23.4.01)
New code on access to EU documents: “Brussels stitch-up” on the cards Updated 23 April
– Council and EP rapporteurs agree “common text”
– Civil society groups reject “deal” between Council and European Parliament
New Council draft code undermines current rights of access: New draft
European Federation of Journalists call for an end to secret negotiations and a “fresh start” on the new code of access to EU documents: “Fresh start”
Validity of secret “trilogue” meetings over new code of access to EU documents thrown into question: Report
Council Decisions: 1) gives EU member states a “veto” over access to documents 2) new Solana classification code will “contaminate” access: Decisions
Hautala v. Council: Partial access to documents: News online
Statewatch wins two new complaints: European Ombudsman decision breaches “space to think”: European Ombudsman
“UK parliament report slams the “Solana Decision” on access to EU documents: Report
“Trilogue” talks start again – call by civil society groups for an end to secret negotiations: Trilogue II
Article by Tony Bunyan, Statewatch editor, in European Voice: No freedom of information in the EU
“Trilogue” discussions collapse with no agreement – 1st May deadline will not be met: Trilogue
Seminar on access to EU documents, 27 February, Brussels: Seminar
ECAS press release on new code of access: EU transparency in muddied waters
New draft shows how far the EU is from real freedom of information: New draft
EU institutions to hold “trilogue” meetings to try and sort a “compromise” on their different versions of the new code of access: trilogue (news, 22.1.01)
The European Federation of Journalists and Statewatch have launched a “Call for an Open Europe” on access to EU documents which includes “Our code”, a code of access to documents for civil society: “Call“
New draft (dated 18.12.00) of Council’s common position leaves the incoming Swedish Presidency with a difficult job: New draft
Chair of EP Committee attacks Council’s draft common position on access: Watson letter
“Solana Decision” extended to cover justice and home affairs, trade and aid: “Solana Two Decision”
Survey shows which EU governments back openness, which do not: Openness survey (29.11.00)
Statewatch News online: “Solana Decision” back on the agenda (27.11.00)
European Parliament “has ignored civil society” plus full-text of the report adopted: Report
European Federation of Journalists publishes “Essays for an Open Europe“, which argue that civil society needs to join in the debate on access to EU documents: Essays
UK House of Commons Select Committee on European Scrutiny report on access to EU documents: Report (21.11.00)
European Parliament adopt report on access to EU documents – but what happened to citizens’ rights?: EP vote, where now?
European Parliament to vote on report on access to documents on Thursday. Full list of amendments, voting list and analysis: EP vote
European Parliament report on access to EU documents in need of radical amendment – parliament to adopt first reading position on Thursday in Strasbourg: Report, critique and documents
Reports on EU access to documents carried on Statewatch News online – please check this page for the latest news:
The European Parliament has formally decided to take the Council of the European Union to court over the “Solana Decision”: Green/EFA press release Council offer deal to head off court action by EP: Compromise
deal
A detailed analysis by Statewatch shows that the European Commission and the Council want less access to documents than at present: Analysis
Germany and France lead fight for more secrecy by EU governments and UK sits on the fence – Council’s position on access to documents even worse than the Commission’s: Council
Sweden Swedish government decided (28.9.00) to back Netherlands court case
Finland : the Finnish government to back the Netherlands in their court case
Netherlands to take EU to court the Netherlands government decides (22.9.00) to take the Council of the European Union to court over the “Solana Decision”
EP Court action The European Parliament votes to take to take the Council to court over the “Solana/NATO Decision
Press release: Green/EFA group in EP
Opinion “Opinion” article in the Irish Times (23.9.00)
NATO letter Snub to European Parliament reveals more NATO demands
MEPs demand action EP decision with full-text documents
Solana’s coup imposes EU security state: EU governments adopt the “NATO/Solana” amendments to the Decision on public access to documents (14.8.00) and it came into effect on 23 August:
Text of the Decision
Analysis The 1993 Decision as now amended by the Decision of 14 August 2000
Classified documents Council Decision of 19 December 1999 overturned
International Federation of Journalists: “Journalists condemn “Summertime Coup”: IFJ
The UK parliament issues critical report on Commission’s proposal: Report
Background document to “Solana Decision” released: Council Security Plan
EP’s position on access: 1st reading report Statewatch proposed amendments to it
Analysis of the Commission and Council’s position on new code of access to EU documents which shows that both institutions want more secrecy and less access than at present: Analysis
Text of speech by Tony Bunyan, Statewatch editor, to the “hearing” in the European Parliament on 18 September 2000 on the new measure on public access to EU documents: Talk
Netherlands to take Council to court over “Solana Decision” Netherlands MEPs demand action on “Solana/NATO” Decision, calls for the European Parliament to take the Council to court: EP to take legal action?
Amendments to the 1993 Decision on public access to documents agreed by “written procedure” on 14 August in advance of the Amsterdam Treaty measure: see Statewatch News online: New access decision For background to the Decision see: Solana coup
The Commission has circulated a revised version of its proposal for public access to documents which contains a significant change from the original: Revised Commission proposal 22.2.00
NEW STATEWATCH COMPLAINTS TO THE EUROPEAN OMBUDSMAN OVER ACCESS TO EU DOCUMENTS
Statewatch has taken two new complaints to against the EU Council of Ministers over access to documents to the European Ombudsman: Press Release 10.7.00
NEWS, DEVELOPMENTS & DEBATES
Statewatch’s suggested amendments to the Commission’s proposal on the public’s right of access to EU documents: Amendments
Online debate organised by Die Zeit between Tony Bunyan, Statewatch editor, and Mary Preston, of the European Commission, on the proposed regulation on public access to EU documents: The debate
The European Environmental Bureau (EEB), which represents 135 environmental citizens organisations, has prepared a critique of the Commission’s proposal, see: EEB
The “debate” between Mr Soderman and Mr Prodi: Mr Soderman/Mr Prodi
THE NEW PROPOSED REGULATION ON PUBLIC ACCESS TO DOCUMENTS
Regulation of public access to documents adopted by the Commission on 26 January: Commission proposal for a regulation on public access to documents
Second draft of Commission’s Regulation leaked to Statewatch: 29.11.99
First draft of Commission’s Regulation: 22.10.99.
THE EUROPEAN COMMISSION’s UNPUBLISHED CONSULTATION PAPERS ON THE PROPOSED REGULATION
The two drafts of the Commission’s unpublished “communication”, dated 22.1.99 and 23.4.99
THE CURRENT CODES OF ACCESS TO DOCUMENT FROM THE COUNCIL and COMMISSION which were adopted in December 1993
The current Codes governing access to documents were adopted in December 1993. Their operation has been greatly improved by challenges in the Court of Justice and complaints to the European Ombudsman by NGOs, MEPs, journalists and academics:
The Code used by the Commission: Commission code
The Code used by the Council: Council code
Statement by the European Federation of Journalists on the proposed regulation: EFJ
Statewatch analysis of the proposed measure: Statewatch analysis
Openness (access to documents) and transparency (an open and understandable decision-making process) are basic, essential, democratic standards. Secrecy and hidden decision-making undermine democracy. Nowhere are these standards more important than in the field of justice and home affairs where the decisions of the Council of Justice and Home Affairs Ministers and its working parties effect the rights of citizens, refugees and asylum-seekers. For this reason Statewatch has worked to extend access to documents and successfully lodged eight complaints with the European Ombudsman against the Council of the European Union over access to documents on justice and home affairs in 1996. As a result of these complaints the right of citizens to appeal to the Ombudsman over access to justice and home affairs documents was written into the Amsterdam Treaty.
Related research
2000-2001: Adoption of the new regulation on access to EU documents
This “Observatory” tracks the progress of the new measure to put into effect Article 255 of the Amsterdam Treaty to “enshrine” the citizens’ right of access to documents from the Council of the European Union, the European Commission and the European Parliament. The measure has to be agreed by these three insitutions under the co-decision procedure.
The “Observatory” has five sections: “Current drafts on the table” and (A) the current Decisions on public access to EU documents and the Commission proposal(s) (B.1) reports from the European Parliament committees (B.2) European Parliament vote on 1st reading report (C) proposals by the Council (D) critiques and comments by civil society.
Updated 31.5.01 – see below. This “Observatory” now represents an archive of the legislative process leading to the adoption of the new Regulation. For news after this see:
Final version of the new EU code of access to documents: Netherlands court case withdrawn & European Parliament negotiating over access to classified documents: New Regulation (html) New Regulation (pdf file)
Final “compromise” text adopted by the European Parliament (3.5.01) and the Council of the European Union (14.5.01): Full-text
COMPROMISE/COMMON TEXT
The “compromise/common text” agreed between the Council, the Commission and the European Parliament’s Committee on Citizens’ Freedoms and Rights will be discussed in the parliament’s plenary session on Wednesday, 2 May and voted on 3 May. The new Regulation is a combination of the Commission’s original proposal as amended by the parliament’s report:
Commission’s proposed Regulation on public access to documents (2nd version, 21.2.00): Text (html)
Amendments to the Commission proposal by the parliament: Text (Word 97, dated 25.4.01)
Critique from civil society of the compromise Regulation: Text (html)
FINAL DRAFTS “ON THE TABLE”
The “compromise/common texts” of the Council and the EP delegation:
Council version of “common text”: Council (pdf) Council (html)
Cashman (PSE)/Maij-Weggen(PPE) version of “compromise/common text”: Text (11.4.01, Word 97) Text (17.4.01, pdf)
Amendments to the amendments: 19.4.01: Cashman (PSE)/Maij-Weggen(PPE): Text (Word 97)
Comments on the amendments: More compromises
Amendments to the “compromise/common text”
Amendments to the “compromise text” from the Green/EFA group and the ELDR (Liberals): Amendments (Word 97)
The view of civil society
The position of Statewatch, the European Federation of Journalists (EFJ), European Citizens Action Service (ECAS), European Environmental Bureau (EEB) Professor Deirdre Curtin, Utrecht University and a member of the Standing Committee of Experts (“The Meijers Committee”, Utrecht) and Ulf Oberg, Stockholm University: Critique of the “Brussels stitch-up” (html)
Do the proposed “common text” agreed by the Council and the EP delegation lower current standards?
Analysis by Steve Peers, Reader in Law, Human Rights Centre, University of Essex: Lower standards
Draft Council common position
11.4.01: Common text with the Cashman/Maij-Weggen text (version 2 of this draft): Text (Word 97)
4.4.01: Common text with Cashman/Maij-Weggen text of 5.4.01: Text Critique This draft Council position would also significantly undermine rights available under the current code of access to EU documents. The European Parliament’s representatives have consistently said they would not support any proposal which undermine current rights. Analysis: Council draft position undermines existing rights
Current draft of the European Parliaments‘ 1st reading position:
Version 6: Cashman/Maij-Weggen(PSE/PPE) report (Word 97) 11.4.01
Version 5: Cashman/Maij-Weggen(PSE/PPE) report (pdf) 5.4.01
Version 4: Cashman/Maij-Weggen (PSE/PPE) report (Word 97). 22.3.01. Critique of report: Critique
First “trilogue” series comparison of texts on the new code from each of the three institutions
NB: the comparative table on SN 1296 contains the text of the European Parliament’s report adopted on 16 November 2000, the European Parliament’s position in SN 1652 and SN 1715 contains the European Parliament’s “compromise” text. With the breakdown of the “trialogue” discussions the parliament has reverted to its original position in SN 1296.
Comparison of the three drafts as at 19.1.01: SN 1296 (pdf file) SN 1296 (Word 97)
Comparison of the three drafts as at 13.2.01: SN 1652 (Word 97)
Comparison of the three drafts as at 15.2.01: SN 1715 (pdf file) SN 1715 (Word 97)
To date there have been four versions of the parliament’s report. The latest, dated 20 February, is “on the table” of the Committee for Citizens’ Freedoms and Rights:
Ver 3:Cashman/Maij-Weggen (PSE/PPE) report (Word 97, 20.2.01) Critique of report: Critique
Ver 4: Cashman/Maij-Weggen (PSE/PPE) report (Word 97, 22.3.01) Critique of report: Critique
- The current Decision(s) and the Commission’s proposal(s)
Decision 93/731, December 1993: 1993 Council Decision
Decision 2000/23, December 1999: 1999 Decision
Decision 2000/527, adopted August 2000: 2000 Decision Background to this Decision: Background
Commission’s “unpublished” discussion papers, 22.1.99 and 23.4.99
Commission’s unpublished and leaked drafts of proposal: 22.10.99 and 29.11.99
Commission’s proposed Regulation on public access to documents (1st version, 26 January 2000): Jan 2000
Commission’s proposed Regulation on public access to documents (2nd version, 21 February 2000): Feb 2000
- 1. Reports from the European Parliament’s committees
The lead committee in the European Parliament is the Citizens’ Freedom and Rights Committee. Five other committees will be adopting “opinions” on the proposed new measure which will be submitted to the lead committee for it to take into consideration before adopting its final report. This final report will go to a plenary session of the full parliament. After this the Council will make its views known on the Commission’s proposal. The Commission can amend its proposal at any time and would respond to the EPs’ and Council positions. The measure, as revised by the Commission, then goes back to the parliament.
Citizen’s Freedom and Rights Committee (rapporteur: Michael Cashman)
1st draft report: Cashman (“rtf” format)
2nd draft report: now a “Common Position” between Cashman (PSE) and Maij-Weggen (PPE) for this Committee and the Committee on Constitutional Affairs: Cashman/Maij-Weggen 3rd draft, 15.9.00: Cashman/Maij-Weggen2 (Word97)
Amendments proposed to the Cashman/Maij-Weggen report (2) for the meeting on 23 October:
Amendments (PDF format) Amendments (Word 97)
Cashman/Maij-Weggen report adopted by the Committee on 23.10.00 which now goes to the EP’s plenary session on 15 November: Cashman/Weggen-final (Word 97) Statewatch’s proposed amendments to this report in line with improving citizens’ right of access to EU documents: Statewatch
Committee on Constitutional Affairs (rapporteur: Hanja Maij-Weggen)
1st Draft report: Maij-Weggen (PDF format) Adopted report, 18.10.00: Maij-Weggen2 (Word 97)
Legal Affairs and Internal Market Committee (rapporteur: Heidi Hautala)
Draft report: Hautala Report adopted unanimously 10 October with minor amendments: Hautala2 (PDF format)
Culture Committee (rapporteur: Ole Andreasen)
Draft report: Andreasen (PDF format) Report adopted 10 October: Andreasen2 (PDF format)
Petitions Committee (rapporteur: Astrid Thors)
Draft report: Thors (PDF format) Report adopted on 10 October: Thors2 (PDF format)
Foreign Affairs Committee (rapporteur: Cecilia Malmstrom)
Draft report: Malmstrom (PDF format) Report adopted 10 October with major changes deleting amendments for more openness: Malmstrom2 (PDF format)
Committee on Budgetary Control (rapporteur: Diemut Theato)
Draft report: Theato (PDF format) Adopted report: Theato2 (Word 97)
- 2. European Parliament plenary vote on 1st reading report
European Parliament vote on report on access to documents on 16 November: Full list of amendments, voting list and analysis: EP vote
European Parliament “has ignored civil society” plus full-text of the report adopted: Report
European Parliament adopt report on access to EU documents – but what happened to citizens’
rights?: EP vote, where now?
- The Council’s proposals on the new measure
6th version: new draft date (29.1.01): New draft
5th version: draft (dated 22.12.00): New draft (pdf)
4th version: draft (dated 18.12.00) of Council’s common position leaves the incoming Swedish Presidency with a difficult job: New draft
3rd version (dated 1.12.00) “Solana Decision” extended to cover justice and home affairs, trade and aid: “Solana Two Decision”
2nd version of draft common position: Solana Decision” back on the agenda (28.11.00): “Solana Two”
1st version: Council’s draft position on access to documents, full-text and analysis: Council
Survey shows which EU governments back openness, which do not: Openness survey (29.11.00)
- Critiques and commentaries by civil society
Speech by Tony Bunyan, Statewatch editor, to the “hearing” in the European Parliament on 18 September: Talk
Statewatch: Amendments to Commission proposal Analysis
European Environment Bureau: EEB
European Federation of Journalists: EFJ
Select Committee on the European Union, House of Lords, UK: Report
Detailed rules for the application of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents
Whereas:
(1) in accordance with Article 255(2) of the EC Treaty, the European Parliament and the Council adopted Regulation (EC) No 104912001 regarding public access to European Parliament, Council and Commission documents.(1)
(2) In accordance with Article 255(3) of the Treaty, Article 18 of the Regulation, which lays down general principles and limits for the exercise of the right of access to documents, provides that each institution is to adapt its Rules of Procedure to the provisions of the Regulation.
Article 1
Beneficiaries
Citizens of the Union and natural or legal persons residing or having their registered office in a Member State shall exercise their right of access to Commission documents under Article 255(1) of the Treaty and Article 2(1) of Regulation (EC) No 104912001 in accordance with these detailed rules. This right of access concerns documents held by the Commission, that is to say, documents drawn up or received by it and in its possession.
Pursuant to Article 2(2) of Regulation (EC) No 1049|2001, citizens of third countries not residing in a Member State and legal persons not having their registered in one of the Member States shall enjoy the right of access to Commission documents on the same terms as the beneficiaries referred to in Article 255(1) of the Treaty.
However, pursuant to Article 195(1) of the Treaty, they shall not have the option of laying a complaint before the European Ombudsman But if the Commission wholly or partly refuses them access to a document after a confirmatory application, they may bring an action before the Court of First Instance of the European Communities in accordance with the fourth paragraph of Article 230 of the Treaty.
Article 2
Access applications
All applications for access to a document shall be sent by mail, fax or e-mail to the Secretariat-General of the Commission or to the relevant Directorate-General or department. The addresses to which applications are to be sent shall be published in the practical guide referred to in Article 8 of these Rules.
The Commission shall answer initial and confirmatory access applications within fifteen working days from the date of registration of the application. In the case of complex or bulky applications, the deadline may be extended by fifteen working days. Reasons must be given for any extension of the deadline and it must be notified to the applicant beforehand.
If an application is imprecise, as referred to in Article 6(2) of Regulation (EC) No 1049/2001, the Commission shall invite the applicant to provide additional information making it possible to identify the documents requested; the deadline for reply shall run only from the time when the Commission has this information.
Any decision which is even partly negative shall state the reason for the refusal based on one of the exceptions listed in Article 4 of Regulation (EC) No 1049/2001 and shall inform the applicant of the remedies available to him.
Article 3
Treatment of initial applications
Without prejudice to Article 9 of these Rules, as soon as the application is registered, an acknowledgement of receipt shall be sent to the applicant, unless the answer can be sent by return post.
The acknowledgement of receipt and the answer shall be sent in writing, where appropriate, by electronic means.
The applicant shall be informed of the response to his application either by the Director-General or the head of department concerned, or by a Director designated for this purpose in the Secretariat-General or by a Director designated in the OLAF where the application concerns documents concerning OLAF activities referred to in Article 2(1) and (2) of Commission Decision 1999/352/EC, ECSC, Euratom (OJ L 136, 31.5.1999, p. 20) establishing OLAF, or by a member of staff they have designated for this purpose.
Any answer which is even partly negative shall inform the applicant of his right to submit, within fifteen working days from receipt of the answer, a confirmatory application to the Secretary-General of the Commission or to the Director of OLAF where the confirmatory application concerns documents concerning OLAF activities referred to in Article 2(1) and (2) of Decision 1999/352/EC, ECSC, Euratom.
Article 4
Treatment of confirmatory applications
In accordance with Article 14 of the Commission’s Rules of Procedure, the power to take decisions on confirmatory applications is delegated to the Secretary-General. However, where the confirmatory application concerns documents concerning OLAF activities referred to in Article 2(1) and (2) of Decision 1999|352|EC, ECSC, Euratom, the decision-making power is delegated to the Director of OLAF.
The Directorate-General or department shall assist the Secretariat-General in the preparation of the decision.
The decision shall be taken by the Secretary-General or by the Director of OLAF after agreement of the Legal Service.
The decision shall be notified to the applicant in writing, where appropriate by electronic means, and inform him of his right to bring an action before the Court of First Instance or to lodge a complaint with the European Ombudsman.
Article 5
Consultations
1. Where the Commission receives an application for access to a document which it holds but which originates from a third party, the Directorate-General or department holding the document shall check whether one of the exceptions provided for by Article 4 of Regulation (EC) No 104912001 applies. if the document requested is classified under the Commission’s security rules, Article 6 of these Rules shall apply.
2. If after that examination, the Directorate-General or department holding the document considers that access to it must be refused under one of the exceptions provided for by Article 4 of Regulation (EC) No 104912001, the negative answer shall be sent to the applicant without consultation of the third-party author.
3. The Directorate-General or department holding the document shall grant the application without consulting the third-party author where:
(a) the document requested has already been disclosed either by its author or under the Regulation or similar provisions;
(b) the disclosure, or partial disclosure, of its contents would not obviously affect one of the interests referred to in Article 4 of Regulation (EC) No 104912001.
4. In all the other cases, the third-party author shall be consulted In particular, if the application for access concerns a document originating from a Member State, the Directorate-General or department holding the document shall consult he originating authority where:
(a) the document was forwarded to the Commission before the date from which Regulation (EC) No 104912001 applies;
(b) the Member State has asked the Commission not to disclose the document without its prior agreement, in accordance with Article 4(s) of Regulation (EC) No 104912001.
5. The third-party author consulted shall have a deadline for reply which shall be no shorter than five working days but must enable the Commission to abide by its own deadlines for reply. In the absence of an answer within the prescribed period, or if the third party is untraceable or not identifiable, the Commission shall decide in accordance with the rules on exceptions in Article 4 of Regulation (EC) No 104912001, taking into account the legitimate interests of the third party on the basis of the information at its disposal.
6. If the Commission intends to give access to a document against the explicit opinion of the author, it shall inform the author of its intention to disclose the document after a ten-working day period and shall draw his attention to the remedies available to him to oppose disclosure.
7. Where a Member State receives an application for access to a document originating from the Commission, it may, for the purposes of consultation, contact the Secretariat-General, which shall be responsible for determining the Directorate-General or department responsible for the document within the Commission The issuing Directorate-General or department of the document reply to the application after consulting the Secretariat-General.
Article 6
Treatment of applications for access to classified documents
Where an application for access concerns a sensitive document as defined in Article 9(1) of Regulation (EC) No 104912001, or another document classified under the Commission’s security rules, it shall be handled by officials entitled to acquaint themselves with the document.
Reasons shall be given on the basis of the exceptions listed in Article 4 of Regulation (EC) No l 049/2001 for any decision refusing access to all or pan of a classified document If it proves that access to the requested document cannot be refused on the basis of these exceptions, the official handling the application shall ensure that the document is declassified before sending it to the applicant.
The agreement of the originating authority shall be required if access is to be given to a sensitive document.
Article 7
Exercise of the right of access
Documents shall be sent by mail, fax or, if available, by e-mail, depending on the application. If documents are voluminous or difficult to handle, the applicant may be invited to consult the documents on the spot. This consultation shall be free.
If the document has been published, the answer shall consist of the publication references and/or the place where the document is available and where appropriate of its web address on the EUROPA site.
If the volume of the documents requested exceeds twenty pages, the applicant may be charged a fee of EUR 0,10 per page plus carriage costs. The charges for other media shall be decided case by case but shall not exceed a reasonable amount.
Article 8
Measures facilitating access to the documents
1. The coverage of the register provided for by Article 11 of Regulation (EC) No 1049/2001 shall be extended gradually. It shall be announced on the EUROPA homepage.
The register shall contain the title of the document (in the languages in which it is available), its serial number and other useful references, an indication of its author and the date of its creation or adoption.
A help page (in all official languages) shall inform the public how the document can be obtained. If the document is published, there shall be a link to the full text.
2. The Commission shall draw up a practical guide to inform the public of their rights under Regulation (EC) No 1049/2001. The guide shall be distributed in all official languages on the EUROPA site and in booklet form.
Article 9
Documents directly accessible to the public
1. This Article applies only to documents drawn up or received after the date from which Regulation (EC) No 1049/2001 applies.
2. The following documents shall be automatically provided on request and, as far as possible, made directly accessible by electronic means:
(a) agendas for Commission meetings;
(b) ordinary minutes of Commission meetings, after approval;
(c) documents adopted by the Commission for publication in the Official Journal of the European Communities;
(d) documents originating from third parties which have already been disclosed by their author or with his consent;
(e) documents already disclosed following a previous application.
3. If it is clear that none of the exceptions provided for in Article 4 of Regulation (EC) No 104912001 is applicable to them, the following documents may be made available, as far as possible by electronic means, provided they do not reflect opinions or individual positions:
(a) after the adoption of a proposal for an act of the Council or of the European Parliament and of the Council preparatory documents for that proposal that were submitted to the College during the adoption process;
b) after the adoption of an act by the Commission under the implementing powers conferred on it, preparatory documents for that act submitted to the College during the adoption process;
(c) after the adoption by the Commission of an act under its own powers, or of a communication, report or working document, preparatory documents for that document submitted to the College during the adoption process.
Article 10
Internal organisation
The Directors-General and heads of department shall have the power to decide on the action to be taken on initial applications. To this end, they shall designate an official to consider access applications and coordinate the response of his Directorate-General or department.
Answers to initial applications shall be sent to the Secretariat-General for information.
Confirmatory applications shall be sent for information to the Directorate-General or department which answered the initial application.
The Secretariat-General shall ensure coordination and uniform implementation of these rules by Commission Directorates-General and departments. To this end, it shall provide all necessary advice and guidelines.
[Commission Decision of 5 December 2001]