09 March 2000
Statewatch bulletin volume 10 no 1
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When the Amsterdam Treaty was signed by the EU governments in June 1997 the Treaty contained what was widely understood to mean a real commitment to "enshrine" openness (access to documents). Article 255 of the Treaty said: Any citizen of the Union.. shall have a right of access to European Parliament, Council and Commission documents.. This commitment in the Treaty, plus the new right of citizens to put complaints to the European Ombudsman on access to documents covering justice and home affairs, followed a series of complaints to the Ombudsman (Statewatch and Steve Peers) and cases in the Court of First Instance (John Carvel/Guardian, the Swedish Journalists Union and Heidi Hautala MEP) in Luxembourg. Prior to the Amsterdam Treaty the Council (the 15 EU governments) had literally been split in two over the issue of access to documents.
The current codes of access adopted in December 1993 have been refined in practice and the discretion available to the institutions to refuse access limited by the decisions of the Court and the Ombudsman. A modus vivendi has in effect been established.
The test for any new code of access is: would it maintain and improve on the existing situation? Or would the "dinosaurs" (as Mr Soderman, the European Ombudsman described the forces for secrecy) use this opportunity to undermine the gains made? Under the Amsterdam Treaty the European Commission was charged with drawing up a measure to put Article 255 into effect which has to be adopted under the co-decision procedure by the Commission, the Council and the European Parliament. The Commission was necessarily not the best of the institutions to draw up the new measure. It was, after all, the Commission that passed as an "A" Point (without debate) in 1992 a code on access which would have introduced a draconian UK-style official secrets act - this was later withdrawn.
Undermining the Amsterdam commitment
The Amsterdam Treaty stipulates that the new measure on access has to be agreed within two years of the Treaty coming into effect, that is by May 2001.
The Secretary-Generals of the three institutions agreed in December 1997 to set up an informal working party under the Commission's Secretariat-General. Over a year later there was a draft discussion paper (dated 22.1.99, leaked to Statewatch) and a revised draft (dated 23.4.99). The draft discussion paper was circulated at a conference held in the European Parliament on 26 April 1999 and was roundly criticised by MEPs, NGOs, lawyers and journalists. The central criticism was that it sought to exclude most documents from access (see Statewatch vol 9 no 2).
In June 1999 the Commission decided not to publish a discussion but to proceed straight to the adoption of a regulation by the Commission. The decision not to put out a discussion paper after two years since June 1997 on such a major Treaty commitment was quite extraordinary. By this move civil society had no formal means to make its views known and was exclude from the process.
The incoming Finnish Presidency made its views known - they would not take kindly to a discussion paper, like the "unofficial" draft in circulation, being put out and they wanted a deadline for the proposed measure. The Commission, mindful that the Finnish Presidency had made openness and access one of its objectives did not even circulate a draft regulation inside the Commission until the end of November.
Draft regulation leaked
At the beginning of December a copy of the November draft of the regulation was leaked to Statewatch. It was translated and put out on the internet with a press release on 9 December. Hundreds visited the Statewatch site including EU governments and NGOs. Before Christmas a number of EU governments had let it be known that the draft regulation was unacceptable, and some said so publicly (including Sweden).
A good deal of pressure was put on Commissioners by their home Member States especially from Sweden, Finland, Denmark and the Netherlands but was to result in only two significant changes.
The date for the adoption of the regulation was finally set for Wednesday 26 January. The previous Friday, 21 January, the Chefs de cabinet (the top officials from each Directorate-General of the Commission) were considering the third revision since it had left the initiating DG.
The regulation was adopted at the regular Wednesday meeting of the full Commission and in the afternoon Mr Prodi appeared before the "Conference of Presidents" at the European Parliament. It is hard to believe that Mr Prodi had read the proposal, or if he had he certainly did not understand it. He told the European Parliament: "The proposals in the draft Regulation provide for a considerable widening in access to documents... We are in fact already open institutions; now legislation will guarantee it to our citizens, and this will make a big difference."
The Commission's press release (IP/00/75) spoke of the: "necessity of maintaining a balance" between a broad access to documents and the need for institutions to have "space to think" in defining policies before they enter the public domain.
The minute the EU institutions start to talk about "balance" then the so-called "space to think" for officials is considered more important than democratic standards and right of civil society to participate in decision-making. Decisions may be taken in the name of EU citizens but they are certainly to take not part in determining them.
"Space to think"
The Commission in effect used one of the most objectionable concepts in the proposed regulation in the process of adopting a new code on public access to documents. Most documents are to be permanently excluded from public access in order to protect the "space to think" of officials in the institutions. This regulation is a prime example. No discussion paper was produced, civil society only had access at the last minutes through a leaked version. No mechanisms existed for criticisms to be taken into account, the only influence was informal on individual Commissioners (some of whom seemed to be unaware of its contents).
The proposed regulation on access to documents does have some improvements over the existing code(s): a) Incoming documents (from third parties) are to be included but Heidi Hautala, Green MEP, said: "The fact that incoming documents can be declared secret, greatly reduces the value of the whole document." b) partial access to documents is to be allowed, with text subject to one of the exceptions removed or deleted. This is only the status quo as it is already covered by a ruling by the Court of First Instance. c) a list of committees is to be prepared by the institutions. d) If an institution fails to reply to a confirmatory application (an appeal against refusal of access) within a month then it will have to supply the documents (subject of course to their right to extend the time to reply to cope with their "vacational seasons").
These improvements are completely undermined by other provisions. The most fundamental is the definition of a "document". Under the current code(s) an applicant can ask for any document subject only to narrowly defined exceptions. Under the draft regulation, in order to protect the right of officials to have the "space to think", the majority of documents will be permanently excluded from the right of access.
Indeed, it not at all clear when documents that can be applied for will be released. The Explanatory Memorandum cites the Committee of Independent Experts to the effect that: "policy made in the glare of publicity and therefore "on the hoof" is often poor policy". This is in line with the sentiment in the unpublished discussion paper which speaks of the need: to delay access to certain documents to avoid interference in the decision-making process and to prevent premature publication of a document from giving rise to "misunderstanding" or jeopardising the interests of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision). (Unpublished discussion Commission paper, 23.4.99) "One can only conclude that the present code(s) as modified by practice and the decisions of the European Ombudsman and the Court of First Instance would be more open than what is being proposed" Tony Bunyan, Statewatch editor said at a press conference in the European Parliament, Brussels on 27 January.
How the drafts of the regulation changed
The first draft of the Regulation was drawn up in Directorate C of the Secretary-General's department is dated 22 October 1999, a later version (sent out for comment by all the Commission's DGs) is dated 29 November 1999 (this version was leaked to Statewatch). It appears that the Commission's Legal Service had some influence on the November version. Another version is dated 21 January 2000 and the final adopted version 26 January 2000. Here some of the changes are examined:
While it had been clear since the beginning of 1999 that the Commission intended to produce a "Regulation" rather than a "Decision" (to replace the existing "Decision") the effect was to take on a new meaning. The November 1999 version under an Article "Entry into force" says: "It shall be applicable to each institution upon entry into force of its internal implementing rules..." It was thus clear and explicit that the Regulation would only apply to the three Brussels institutions (the Council, the Commission and the European Parliament). However, after strong objections by some governments led to Article 10 being dropped the wording under "Entry in force" changed to: "This Regulation shall be binding in its entirety and directly applicable in all Member States." This change of wording re-established the effect of the original Article 10. While it is usual for Regulations in Community law to contain such a concluding phrase this was not the terminology used in the November 1999 version (which contained Article 10). Moreover, the officials making drafting changes to the text must have been aware of the implications. As set out in this Commission proposal the regulation would apply to Member States and seriously undermine the best practice on access to documents in a number of countries. Unless this effect can be removed from the regulation then the proposal should become a "Decision" thus removing the mandatory effect on Member States.
ANALYSIS of the proposal -
The Explanatory memorandum
Two points in the Explanatory memorandum are worth noting. Under the heading "Documents covered by this regulation" the Commission says that: This legislation will cover all documents held by the three institutions, i.e. documents drawn up by them or emanating from third parties and in the possession of the institutions. while under the heading "Definition of the term "document"" the Commission goes on to say that the regulation will only cover "administrative documents" namely: any document on a topic which falls within the institution's remit excluding individual opinions or reflecting free and frank discussions or provision of advice as part of internal consultations and deliberations as well as informal messages such as e-mail messages which can be considered the equivalent of telephone conversations. (emphasis added) It seeking backing for this view, which could excludes 60-70% of the documents produced, by quoting the second report of the Committee of Independent Experts (who reported on EU fraud) as follows: like all political institutions, the Commission needs the "space to think" to formulate policy before it enters the public domain, on the grounds that policy made in the glare of publicity and therefore "on the hoof" is often poor policy. On many other issues in the regulation the explanatory memorandum is silent.
The REGULATION -
Preamble
The Preamble open with the statement that the Amsterdam Treaty "enshrines the concept of openness" (point 1). It even recognises the obvious, that openness enables citizens to take part in decision-making and thus the administration "enjoys greater legitimacy" and is "more accountable vis-a-vis the citizens in a democratic system". The argument for openness could not be put better.
Then the argument is completely undermined in point 9 of the Preamble by saying: The institutions should be entitled to protect their internal documents which express individual opinions or reflect free and frank discussions and provision of advice as part of internal consultations and deliberations. (see Article 3a below) The actual intent of the Commission in its proposal is unclear. The "space to think" and "free and frank" references to "internal documents" suggests that the Commission, like in its unpublished discussion papers, is only intending to release proposals once adopted by the full Commission. All the reports and influences on the policy-making outcome (in the adopted decision) are to be excluded from access, and from civil society.
Point 12 invents the concept of the "loyalty" of EU member states to the Community institutions and stipulates that member states should "take care not to undermine application of this Regulation". In other words the operation of national laws on access to documents should be determined by this Regulation in releasing EU documents.
The REGULATION -
Article by Article
Article 1: General principle and beneficiaries
Like the beginning of the Preamble this sets out the laudable objective of citizens having the right of the "widest possible access" to documents.
Article 2: Scope
Article 2.1 opens by defining the scope namely, that the regulation will "apply to all documents held by the institutions, i.e. produced by them or received from third parties and in their possession."
Article 2.2 Is meaningless to all except those who have applied for documents. The first sentence says that the regulation will not apply to "documents already published or accessible to the public." "Documents already published" has been used by the Commission not to supply documents in its possession at the cost of photocopying (maybe £2-3) but instead to refer applicants to national Stationery offices who offer to sell the requested documents - in one case at a cost of £30 plus for a copy of an Official Journal. Does "available to the public" mean that the requested document is on the internet? If it does then the Commission is assuming everyone has access to the internet, which they do not.
Most important of all, a document reproduced in the Official Journal of the European Communities or on the internet is not the same as the document considered by the institution - for example, it will not contain a document reference number or acronym enabling it's progress to traced through the decision-making process.
Article 3: Definitions
Article 3.a which defines the meaning of the term "document" drives a "coach and horses" (several of them) through the present principle that an applicant may apply for any document (subject only to narrowly-defined exceptions). It says: only administrative documents shall be covered, i.e. documents concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility excluding texts for internal use such as discussion documents, opinions of departments and informal messages. So having said in Article 2.1 that "all documents" will be covered it then excludes up to 70%+ of the documents produced. Moreover its effect is quite unclear and will leave an unacceptable degree of discretion in the hands of the institutions which in turn will lead to complaints to the European Ombudsman or to the Court of First Instance. For example, "Discussion documents" form part of the decision-making process - what options were considered and which were dropped, who submitted views and what did they say? The "opinions of departments" is equally important - how did these influence the final measure, what did they say? As for "informal messages" this appears to refer to "e-mails" which in the Explanatory memorandum are compared to telephone conversation - they are nothing of the sort. Anyone who uses e-mail knows that they are the equivalent of a letter or memo not a conversation - moreover Statewatch has learnt that Council and Commission officials use e-mail extensively in the development of policy.
Access to these documents is excluded not just prior to the adoption of a policy/measure but for all time.
Article 4: Exceptions
In addition to seeking to exclude many documents from access the "Exceptions" have been widened - the grounds on which access may be refused. The first of the entirely new categories is: relations between and/or with Member States or community or non-Community organisations. It is not at all clear what this refers to, no explanation is given in the explanatory memorandum and this is covered by other exceptions such as confidentiality. The second, is: the stability of the Community legal order
Again, there is no explanation of this new category in the explanatory memorandum. It is unclear whether this is a wide definition embracing criminal and administrative law or a more narrow one - such as ensuring the confidentiality of the opinions of the legal services of the institutions which the Court of Justice has already recognised. The third new exception covers just about everything:
"the deliberations and effective functioning of the institutions."
This appears to be a re-working of the current Article 4.2 which gives the institutions a discretionary power (may refuse rather than shall refuse) to "protect the confidentiality of the Council's proceedings". On the other hand the introduction of the term "effective functioning" suggest a wider purpose which covers the infamous "premature publication of a document from giving rise to "misunderstandings"" in the Commission's unpublished discussion paper.
Article 4.d would allow a "third party" supplying a document to refuse access. This runs counter to the inclusion in the regulation of documents coming from "third parties". If such documents form part of the decision-making process or the implementation of a measure then they should be properly be in the public domain subject only to primary exceptions (like public security).
Article 5: Processing of initial applications
This Article seeks to change the existing code which refers to "repeat applications" to "repetitive applications" which is fundamentally different. Statewatch challenged the Council interpretation of "repeat applications" when it tried to refuse documents because Statewatch's applications always concerned the same subject matter, namely justice and home affairs. The European Ombudsman upheld Statewatch's complaint. Now the Commission's proposal seeks to put the clock back.
The Article, like at present, speaks of the option of a "amicable and fair solution" after consulting the applicant. But applicants are rarely consulted and the "fair solution" means the institution position - this can only be challenged through the lengthy process of going to the European Ombudsman or the Court of Justice. It is thus, in practice, meaningless.
Articles 5 and 6
Both of these Articles allow the institutions "in exceptional cases" to extend the time for replying to a request from one month to two months. This is in the current rules but in practice is abused. "Exceptional cases" is used to cover the so-called "vacational season" of August and often Christmas.
Article 6: Processing of confirmatory applications - Remedies
This Article has one positive improvement. It proposes that the failure of the institution to reply to a "confirmatory application" (an appeal against refusal of access) within the time-limit shall indicate a "positive response" (the document(s) will be supplied).
Article 7: Exercise of the right of access
Includes in Article 7.4 the possibility that "abridged" versions of document will be supplied, with sections "blanked out" if covered by one of the exceptions in Article 4.
Article 8: Reproduction for commercial purposes or other forms of economic exploitation
This Article does now include the provision that a person given a document may not "reproduce" it (a change from the November 1999) draft. However, it does change the current codes which say that document may not be reproduced "for commercial purposes through direct sale" without prior authorisation. It now says the applicant may not reproduce a document for commercial purposes "or exploit it for any other economic purposes". The intent is unclear and there is no reason given in the explanatory memorandum.
Article 11: Entry into force
As the Commission has chosen to present this measure as a "regulation", rather than as a "decision", it includes the following: This Regulation shall be binding in its entirety and directly applicable in all Member States. This would ensure the "loyalty" of member states.
Sources: Proposal for a regulation of the European Parliament and the Council regarding public access to documents of the European Parliament, the Council and the Commission, 26.1.00; Draft proposal for a regulation regarding public access to documents of the European Parliament, the Council and the Commission, COM (2000) 30, 21.1.00; Proposal for a regulation regarding public access to documents of the European Parliament, the Council and the Commission, SG.C.VJ/CD D(98) 159, 22.10.99; Proposal for a regulation regarding public access to documents of the European Parliament, the Council and the Commission, SG.C.VJ/CD D(98) 159/2, 29.11.99; Commission press release, 26.1.00; See Statewatch, vol 9 nos 2 & 6.
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