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FOI in the EU back on the agenda: Statewatch lodges two complaints against the Commission
01 July 2007
Statewatch has lodged two complaints against the European Commission with the European Ombudsman. The first concerns the Commission's failure to maintain a proper public register of documents as it is obliged to do under the Regulation on access to EU documents (1049/2001). The second concerns the Commission's failure 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. In a press release Tony Bunyan, Director of Statewatch, commented:
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
Commission's failure to provide a proper public register of documents
One of the prerequisites of informed debate in a democracy is access to the documents on which adopted measures are based. People can then see what influences are at work and which ideas were accepted or rejected and why.
The primary source of EU documents is the public registers of documents set up under the 2001 Regulation (1049/2001). The Regulation applies to the three main institutions: the Council of the European Union (the 27 governments), the European Commission and the European Parliament. The Council and parliament have public registers that contain references to the majority of their documents and broadly meet the Regulation. The same cannot be said of the European Commission.
The Commission’s public register of documents only contains legislative texts and adopted Commission reports (COM and SEC documents). It does not include the vast majority of documents produced or received by the Commission. In its annual reports the Commission has simply spoken of gradually "improving" its register. Whereas Article 11.1 of the Regulation says: "References to documents shall be recorded in the register without delay."
The European Ombudsman accepted Statewatch's complaint on 23 October 2006 and it took the Commission six months to respond. Extraordinarily the reply by President of the Commission contested the provision of Article 11.1 by saying:
It does not stipulate that public registers should include references to all documents
But Article 11.1 is explicit: it does not say some documents or certain documents, it clearly refers to
all documents.
Equally extraordinarily the Commission seeks to question the definition of a "document" as set out in Article 3.a of the Regulation by saying that a "precise definition" of a document is needed - when Article 3.a is also quite explicit: it is any document produced or received by the Commission whatever its medium.
The Commission then tries to claim that the Regulation: “has a particular focus on the legislative activities of the institutions” which is quite untrue, the focus is on citizen’s access to documents in general. Article 12.2 does refer to legislative activities with a “focus” on giving direct access to the content of documents (as distinct from just references). Even here the Commission has failed.
According to a survey by
Statewatch (April) since the DGJLS (justice and home afairs) register went online in 2002 the full-text has only been provided to:
- 43% of COM documents (Communications)
- 21% of SEC documents (backing up COM documents) and
- only 0.5% of 599 Commission Decisions in this DG.
In its response the Commission adm