Statewatch
Observatory: the Regulation on access to EU documents: 2008-2009
with the following partners: European Federation of Journalists (EFJ), wobbing Europe, Corporate Observatory Europe (CoE) and European Citizens Action Service (ECAS). Updated 22 June 2009
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. In due course the European Parliament will adopt a report on the Commission's proposals and a Council Working Party will separately produce its reactions too - the EP and the Council may suggest additional changes to the text.Basic and current documents: Commission: Proposed amendments: Explanatory Memorandum and Annotated text(pdf); European Parliament: Amendments to the Commission proposal and current: Regulation 1049/2001/EC Regulation 1049/2001/EC (pdf): in operation since 2001 and ongoing
This Observatory puts on record all the developments in the following order:
1) Latest News, analyses and documentation; 2) Commission proposals; 3) European Parliament positions; 4) Council positions; 5) European Ombudsman; 6) European Data Protection Supervisor and 6) Critiques and analyses from civil society.
Full background documentation since 1993 is available on our Observatory: Freedom of Information (FOI) in the EU
News and analyses
Latest 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
"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."
- Press release
- Court judgment - full-text
- Turco press statement
"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."
"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."
"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."
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.
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
"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?)
"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."
"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."
"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)
"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."
"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."
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?
"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'.
"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)."
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".
Press release (pdf) and Full-text of speech (pdf)
"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.
"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."
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
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 changesEuropean 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's Legal Service: Opinion on the EPs' amendments (dated)- 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: 11065/09- 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 SupervisorOpinion 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
- Speech by Professor Steve Peers on behalf of Statewatch at the hearing in the European Parliament on 2 June 2008 (pdf)
- 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
Statewatch [*]
European Federation of Journalists (EFJ)
wobbing Europe
Corporate Observatory Europe (COE) European Citizens Action Service (ECAS)
* Statewatch's work on Access to EU documents is supported by the Joseph Rowntree Charitable Trust, Garden Court Chambers and the Network for Social Change.
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