Proposed Amendments to EU Access to Documents Regulation 1049/2001
In 2008, after a relatively short seven years of application during which the European Commission lost a number of key cases overturning its refusals to grant access to documents, it proposed a complete recasting of the Regulation 1049/2001. The justifications for this include bringing it into line with the Lisbon Treaty which expands the scope of the regulation to apply to all EU institutions and all requesters. Another reason given by the Commission is the need to incorporate the provisions of the Aarhus Convention on access to environmental information into the EU’s access to documents.
Such strengthening of the right of access is welcome. Unfortunately, and despite the European Parliament’s desire to strengthen the regulation in favour of greater transparency, the Commission proposal will actually limit the public’s right to access EU documents.
The Commission’s Proposal – some examples
• Narrower definition of “document”: The Commission proposes a more “precise” definition of a document. It is actually narrower, as it now excludes information that has not been “transmitted to its recipients or circulated within the institution or has been otherwise registered.” Many Commission documents are currently not registered and many may be held by only one or two people.
• Exclusion of databases: Although asserting that a clearer definition of databases is being given, access to documents in electronic format is now only possible “insofar as these can be extracted in the form of a printout or electronic-format copy using the available tools for the exploitation of the system.” In other words, it may not possible to have access to an entire database, or even to part of it if the “tools” are not available. With much important information now being held in databases, this is of serious concern.
• Veto Rights for EU Member States: The commission also proposes to allow Member States to veto the release of information sent by them to the EU, provided they give some sort of reason. However, this reason can be based on any exception contained in the national freedom of information law, instead of only on those contained within regulation 1049/2001 itself.
The concern here is that EU countries which have non-existent or weak access to information laws will be able to apply these. For example, in Italy it is necessary for requesters to demonstrate a direct interest in having the information. Luxembourg, Cyprus, Malta, Spain do not have access to information laws.
• Blanket Exception for Legal Advice: The commission also wants to place a blanket exception on all legal advice so that none can be made public. This is a direct response to losing a case at the European Court of Justice which ordered disclosure of legal advice.
• Extended time for EU bodies to process appeals: The Commission’s proposal is that the response time for processing the first level appeals, “confirmatory applications” be extended from the current 15 working days to 30 working days. Although the experience of the Commission is that many confirmatory applications take longer than this to process, the experience of many requesters is that presenting a confirmatory application is necessary to get access to the data. In that sense, a total period of 45 working days, or over two months, is a long time for the exercise of a fundamental right necessary to participate in public debate and to hold public institutions accountable.
• Personal data protection not subject to public interest test: Although the commission claims to support the idea that information about individuals working in a public capacity should be public in principle, there is a concern that the newly-worded exception contains greater potential to limit access because there is no overriding public interest test. This means when access to information is refused because “disclosure would adversely affect the persons concerned” no counter-argument based on the public importance of the information would be admitted.
These changes pose a significant threat to the public’s right to know what is happening in the European Union as well as undermining our ability to participate in the creation of laws and policies that increasingly govern our everyday lives.
To see the full document with the Commission’s Proposals, click here
The Parliament’s Proposal – In favour of greater transparency
Access Info welcomes a 17 December 2009 resolution by the European Parliament which calls for a strengthening of the EU Access to Documents Rules. See: European Parliament resolution of 17 December 2009 on improvements needed to the legal framework for access to documents following the entry into force of the Lisbon Treaty, Regulation (EC) No 1049/2001. The Resolution calls for the main EU rules on access to documents (Regulation 1049/2001) to be strengthened and broadened in line with recognition of access to documents as a right under the Lisbon Treaty which entered into force on 1 December 2009.
These changes should include:
• widening the scope of rules to encompass all the EU institutions, bodies, offices and agencies currently not covered, such as the European Council, the European Central Bank, the ECJ, Europol and Eurojust;
• providing more access to Internal Documents, Legal Service opinions, transcripts of meetings, information of positions taken by member states and information relating to the work of Member State representatives when acting as members of the Council, based on recent European Court of Justice case-law;
• providing detailed information related to the EU budget; ensuring greater availability of information on law-making and decision-making.
The resolution also calls for development of more user-friendly systems to ensure more access to information for citizens.
In addition, the Parliament also criticised the European Commission for taking action on the day after Lisbon Treaty came into force, 2 December 2009, to change the legal basis for Regulation 1049/2001 without broadening the scope of the right of access to documents.
Access Info also urges the Parliament to take action to keep its commitment, made in the Resolution, to update the parliamentary rules to ensure that “Parliament leads by example in the EU by ensuring the widest degree of openness, transparency and access to documents”.
Access Info Europe is working to defend and protect European freedom of information by monitoring transparency in the Commission and amongst the EU-27; by creating european alliances to lobby MEPs; and by taking the Commission to the General Court of the European Union to fight for the public’s Right to Know.
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