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”Diluted wine and poison” – widened conflict on access rules

Negotiations with at poisonous content

Member states meeting in a working group held on to a restrictive approach to transparency on EU-documents at their latest gathering.
”There was some diluted wine, but also some poison,” a source commented after the meeting.
A positive sign from a pro-transparent perspective (”the diluted wine”) was that a narrow definition of a document, suggested by the Commission did not get a full scale backing. (The major areas of conflicts to be found here.)
”We might not need to fight for what we already got in 2001 at least on this point,” the argument runs.
Never the less, restrictions on what should be accessible appeared during other parts of the meeting.
There were different opinions on when a document should be regarded as ”final”, and thus being able to be requested.

As for the pure poisonous positions, many member states held on to the Commission's proposal that legal advices should be covered by the same exemptions for transparency as submissions to court proceedings. This would run counter to judgements from the European Court of Justice on the present rules. (In the Turco-case an Italian politician finally got access to internal EU legal advices concerning EU asylum rules. This document was not part of court proceedings)
Helen Darbishire, director of Acces Info a campaign organisation based in Madrid comments:
”We are particularly concerned at attempts to push through blanket exceptions for legal advice, thereby reversing the jurisprudence of the European Court of Human Rights. So many EU decisions rest on the advice of legal services.”

“For example, in the scope of this reform there will be a referral to the legal service for advice regarding data protection. Should we really not know what the legal service says about this? Particularly as data protection can be used to hide so much about decision making and spending of public funds.”
“It’s essential that the public knows what legal advice is being given and how EU law is being interpreted at crucial moments of policy making and always in the legislative process which the EU treaties post Lisbon require to be open,” Helen Darbishire adds.

Her criticism is backed by more than 30 organisations worldwide asking EU-lawmakers to take 20 different key concerns into account. The signatories range from Freedom Forum Nepal and Africa Freedom of Information Center to civil rights defenders in various EU member states.
Access Info Europe has also elaborated an analysis of the 20 key concerns making it easy to compare the present rules to the proposals from the Commission, the position of the Parliament and the organisation's own recommendations for pro-transparent changes.

At the latest working group meeting the balance between right to access and protection of privacy was as it happens another area where the majority favoured a limited access.
There was also backing for suggestions that member states should be able to refer to their national law to restrict access of documents sent to Bruxelles. This would mean national veto to openness, and would also constitute a step backward compered to the regulation in force.

Negotiations on new access rules has gained momentum during the Danish presidency following a vote in the Parliament in december last year on the proposals from the Commission.
The presidency aims to reach a conclusion this spring before Cyprus takes over at the helm. To soften up positions the danes started off by having bilateral talks earlier this year with each and every other member state government. This was an untraditional move. But there are no substantial signs to prove that this effort has paid off.

The only progress to be noted so far is that member states agree that access rules in the future should govern all EU-institutions, and not only the Council, the Commission and the Parliament. As this follows the Lisbon treaty, it can neither be described as a surprise, nor as a real move forward.
Arguments have be given that EU-institutions would have an urge of their own to open up to legitimize recently adopted austerity measures, and to bridge a growing accountability gap.
If this is the case it is still to be materialised.
And now time has started to run short.

In order to make a deal between the Council, the Commission and the Parliament before July 1 so called trilogue, or tripartite, negotiation between representatives for the three institutions should start sometime in April. It is still to early to judge if this is a likely scenario or not, we are told.
Helen Darbishir at Access Info comments on the general atmosphere:
“We understand that the States most resistant to greater transparency of the EU include France, Spain and Greece which are all party to the case against Access Info Europe as well, along with Germany. It is possible that the recent scandal about French and German arms sales to Greece is the kind of thing which hardens attitudes but it’s also a perfect example of why we need transparency.”


Staffan Dahllöf


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