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EU: Secrecy: The "dinosaurs" are on the march again..excluding citizens and civil society

01 March 1999

an embargo could be imposed.. to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of a document from giving rise to "misunderstandings" or jeopardising the interest of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision.. (Discussion paper on public access to Commission documents, 23 April 1999 and summarising the discussions held between "officials" from the European Parliament, Council and Commission)

The proposal coming out of the discussions of the officials of the Secretaries-General of the Council, Commission and European Parliament is one that would exclude citizens and civil society from any role in the decision-making process in the EU. The line of reasoning runs as follows.

The 1993 Decision

The 1993 Decision (20.12.93) by the Council and the Code of Conduct (6.12.93) under which the Commission operates its policy of public access to documents came out of Declaration no 17 attached to the Maastricht Treaty. The current 1993 Council Decision (and the equivalent Commission one) says in Article 1:

1. The public shall have access to Council documents under the conditions laid down in the Decision.

2. "Council document" means any written text, whatever its medium, containing existing data and held by the Council, subject to Article 2(2) [which refers to documents originating in another institution].

The essential principle of the 1993 Decision, which will continue in operation until replaced by the new Regulation, is that a citizen can apply for any document held by the Council subject only to the exceptions in Article 4 (see below). Expressed another way the citizen can apply for any document but can be refused access on specific written grounds.

Under the proposed system this principle is removed. Documents would be divided into two categories:

1. "accessible" documents concerning legislative measures;

2. and non-accessible internal "working documents".

By basing "accessible" documents on the concept of legislative measures the proposal perversely exploits a phrase in the Amsterdam Treaty amending the Council's Rules of Procedure (Article 207.3, TEC) which reads: "the Council shall define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in those cases..". Of course it could be argued that this phrase does not necessarily imply that the Council should not allow access to documents where they do not concern the legislative process, nor is this term necessarily applicable to the Commission and European Parliament. Indeed, under the present practice many documents are released which do not concern the legislative process.

However, the present proposal has sought to exploit this wording to automatically exclude from access documents which do not relate to the legislative process - around 60% of the documents currently released do not concern the legislative process but rather ongoing practices resulting from measures already agreed.

An earlier, "leaked", version, refers to the "hard core" of Article 255 (the Treaty provision setting out the right of access) and the possibility of "going beyond the strict provisions" (interpreted as strictly legislative) and, in paternalistic fashion, giving out "certain documents.. without granting a formal right of access".

The introduction of an "embargo" system "until after the formal adoption of a decision.." would deny civil society and citizens the chance to participate in the decision-making process - a process which is meant to be "democratic". This concept of "democracy" means that governments and parliaments take decisions and civil society and citizen are then informed after the fact. This would be achieved by delaying "access to certain documents". The proposals says in a footnote (later deleted) that the<