WOB value

European Union


EU: Sharpened conflicts on new access rules (UPDATED)

MEP Michael Cashman

The European Parliament sharpens its resistance to new access rules in the EU, as proposed by the Commission. At the same time the politicians want to widen the scope of secrecy for citizens in order to get a better access to documents themselves. (UPDATES on comments and source).

December 14 and 15 look to be crucial dates for future EU-access rules. At a plenary session in Strasbourg the 736 politicians will debate, and possible vote on, suggestions recently adopted by LIBE, the committee on Civil Liberties, Justice and Home Affairs.
In the committee rapporteur Michael Cashman (UK, Labour) and others got a backing from most groups, except from the centre-right EPP (European People's Party – Christian Democrats), the largest single party group in the Parliament, and the party group forming government in a majority of member states.

UPDATE: Out of 20 EPP members in the LIBE committee, 16 have signed a minority opinion saying the majority report goes far beyond the goal of transparency and would greatly complicate decision-making (see Documents).

With 33 votes against 17 in favour of the amendments, the scene is set for a clash between on the one hand a pro-transparent majority in the Parliament, and on the the other hand the civil servants in the Commission, likely to be supported by a majority in the Council.
The amendments now put forward by the LIBE-committee would make important differences on several areas, compared to the Commission's proposals:


What is a document (article 3)?
EP: Any data content whatever its medium, and all documents held by an EU-institutions (for the European Court of Justice, the European Central Bank and the European Investment Bank this would apply only to administrative tasks). The definition also includes data that can be extracted using any reasonably available tool.
Commission: Any content drawn up by an institution and formally transmitted or otherwise registered or received. Data shall be included if they can be extracted using the available tool.
Differences: The EP proposal gives a wider definition of documents. The Commission proposal could help hiding documents from disclosure simple by not register them in a formal way. The EP puts harder demands for institutions to provide data extraction (”any reasonable available tool”, compared to ”the available tool”).


Legal advice (article 4.2c)
EP: Legal advice relating to court proceedings (but no other legal advice) shall not be disclosed.
Commission: Legal advice and court arbitration and dispute settlement proceedings shall not be disclosed.
Differences: The Court of Justice stated in the Turco case (C-39/05) that citizens have a right to see legal advices in legislative matters. The EP wants to adapt the future rules to this ruling.
The Commissions generally wants to keep legal advices out of reach for access.


Decision-making processes, ”time to think” (article 4.3 and article 5a)
EP: Documents forming part of the legislative procedure shall ”in principle” be accessible. Exceptions for documents can be made if the decision has not yet been made, and if disclosure would manifestly and seriously undermine the upcoming decision (4.3). Also documents related to legislation and implementation of EU-law shall be accessible on a user friendly and inter institutional website (portal). Preparatory documents shall be published on the net as well (5a).
Commission: No disclosure if that would seriously undermine decisions, in some cases also no disclosure containing opinions after the decision has been taken.
Differences: EP tries to narrow the ”space to think” for the institutions making more documents available before decisions are made.

Comment (UPDATE): Tony Bunyan editor and director of the London-based documentationcenter Statewatch points out that the article 4.3 amendment protects the "space to think" for everything except legislative procedures, ie: all the practice and implementation. Also, and very importantly, it will not limit the secrecy of agencies and bodies who do not pass legislation.

”However, article 5a is a partial advance as it will theoretically mean that lots of hidden documents leading up a Commission proposal would have to be released, as would questionarries and their results by the Council, plus all the documents converning a dossier. I suspect that even if this gets through - against the opposition of the Council and the Commission -  there will be a big fight to get it enforced,” Tony Bunyan says.



Overriding interests (article 4.4)
EP: There is an overriding public interest in disclosure of documents relating to fundamental rights, or the right to live in a healthy environment. Exceptions to this must be proven in an objective and individual assessment to show that risks are not purely hypothetical.
Commission: There is an overriding public interest in disclosure where information relates to emissions into the environment.
Differences: EP wants transparency to be an overriding interest in broader areas than the Commission.


Privacy, data legislation and lobbyists (article 4.5 and 4.7)
EP: Personal data such as names shall be disclosed if there's an overriding public interest and if the data relates to professional activities, or relates to a public person (with some exceptions) or have already been released with the consent of the person involved. Data shall always be disclosed in procedure leading to a legislative act, and for documents aimed to influence policymaking by lobbyists and other interested parties.
Commission: Name publishing should be governed by data legislation with exceptions for public office holders, civil servant and interest representatives.
Difference: Commissions refers to ruling by the European Court of Justice in the Bavarian Lager case (C-28/08 P) which said that names of persons from the beer business taking part in a meeting should not be revealed. EP wants to enforce the weight of transparency, referring to the opinion of the European Data Protection Supervisory.


Veto by member states (article 5)
EP: Documents sent to EU from a member states shall be treated according to the EU-regulation, and not according to national laws.
Commission: EU-institutions shall consult third party (member states) with a view of assessing whether a requested document shall be disclosed or not.
Difference: Commission wants to strengthen members states right so reject disclosure. The Parliament says no to veto right for member states, as is the case today.


Handling time (article 8.1)
EP: Confirmatory application (appeal of rejected disclosure) to be handled within a maximum of 15 working days, as in the present regulation.
Commission: Confirmatory application to be handled within 30 working days.
Difference: 15 days.


Information officer and service to citizens (article 14a and 15.1a)
EP: Each administrative unit shall appoint a information officer to assist the public, secure the implementation of the rules and look for best practice. Institutions shall inform citizens about organisational chart, workflow, indicative deadlines, etc
Commission: No such suggestions.
Difference: An initiative by EP-rapporteur Michael Cashman.


Budget transparency (article 15.2a)
EP: Documents relating to EU budget to be accessible via specific website and database
Commission: No such suggestions.


Rules on copyright (article 16)
EP: The regulation shall be without prejudice to rules of copyright which may limit a right to reproduce or exploit released documents.
Commission: The regulation shall be without prejudice to rules of copyright which may limit a right to obtain copies or to reproduce or exploit released documents.
Difference: The Commissions whats to make it an offence to copy right rules even to obtain documents.


The issues listed so far shows a rather clear difference between a pro transparency Parliament and reluctant Commission. On the aspect of classified documents (= sensitive information regarded to fall outside the scope of access) the waters are more muddled.
On classification the LIBE-committee suggests the same rules for all EU-bodies as already in use internally in the Council. These rules are now also to be adopted by member states following an intergovernmental agreement reported earlier this year by this website.
This means that the Parliament introduces four levels of classification (new article 3a) adding ”restricted” to the existing three levels in the present regulation (article 9) – top secret, secret and confidential.

By doing this, the Parliament actually broadens the scope of secrecy also to cover ”information which could be disadvantageous to the interest of the Union or of one or more of the member states.”
How can that be justified?
To deal with common rules for the institutions I'm replicating what is already existing in the internal rules of the Council, rapporteur Michael Cashman told wobbing.eu in October.


The point seen from the Parliament's horizon is that four levels of classification would put the directly elected politicians on the same level as the the diplomats in the Council, and the civil servants in the Commission, when it comes to classified information.
This is presented quite clearly in the proposed article 3a.3:
International agreements (…) cannot give any right to a third country or international organisation to prevent the European Parliament from having access to that confidential information.
The Parliament shall not be kept in the dark. Citizens rights is a different case. Citizens will have to rely on their elected representatives.
The prize for such a change in the institutional power balance will most likely be paid for by the public at large as all EU-institutions will get the right to classify information on the sole reason of the information being ”disadvantageous” to the EU or a member state.


Beside the differences on how transparent the EU should be, and beside the classification issue, a third aspect complicates the process:
The Commission would rather not have a general debate and vote on the content of the rules in December, but suggest a minor change put forward this spring in order to adapt the present rules to the Lisbon treaty.
Maroš Šefčovič, the responsible commissioner, has according to different sources tried to prevent the Cashman report going to plenary, but does not seem to be successful with this mission, at the time of writing.


If the Parliament adopts the Cashman report the upcoming Danish EU-presidency will put the whole issue on the agenda for so called trilogue negotiation between the Council, the Commission and the Parliament in the spring. The danes will do this with a clear aim to reach an agreement before Cyprus takes over in July 2012, this website has learned.
This adds yet another paradox to the thorny question of access rules:
Trilogues are negotiations behind close doors. It can be seen as somewhat strange or contradictory to secretly negotiate new rules supposed to promote transparency.


NOTE (UPDATED): The amendments adobted byt the LIBE committee is now written into a single document together with the proposals from the Commission, and three previous reports from other committees. This file also contains the minority opinion from the EPP-group (in German) - see Documents.


Staffan Dahllöf


Wobbing.eu recommends