The Danish EU presidency failed to unite member states behind new access rules for the EU institutions. Sweden, Finland and possibly others refused to back a mandate to negotiate a new regulation, and the Swedish minister of justice pinned her hopes on the European Parliament instead.
A split brought into the open
Member states had long held different opinions on access rules, but the divide now surfaced publicly. Swedish minister of justice Beatrice Ask, a conservative, instructed the Swedish EU ambassador not to endorse a negotiating mandate proposed by the Danish presidency. In a comment, Ask explained her reasoning: "If the mandate would give space for improved openness I would be the first to vote yes, but I believe that would be wishful thinking as things stand right now. The mandate will pull in the opposite direction, and there is even a risk that it is worse than the Commission's proposal from 2008."
How the mandate was to move forward
The mandate was placed on the agenda for "endorsement" at a weekly meeting of member states' EU ambassadors, known in Brussels by the French acronym Coreper (Comité des Représentants Permanents), with 8 or 10 May seen as a likely occasion. The endorsement would initiate a three-way negotiation between the Council of ministers, the Commission and the Parliament, eventually paving the way for a legislative decision by the Council and the Parliament. It was not yet clear whether the Council's mandate would be made public.
The most sensitive issues
The proposal's most contested points were reported to include:
- A new article defining when a document is finalised and therefore accessible, stating that a document is covered "when finalized for the purpose it was intended."
- Whole categories of documents kept outside the scope — files on infringement procedures (member states accused of breaking EU law), on competition (cartels, mergers and state-aid cases), and documents related to court proceedings.
- Advice from legal services on disputed matters also kept outside the scope — an exemption the Court of Justice had judged unfounded under the regulation then in force.
- Data protection likely to override the right of access.
- A veto for member states on the release of documents they had sent to the institutions.
In all, nine different areas remained to be settled in the upcoming negotiations with the Parliament, not counting new amendments the parliamentarians might bring to the table. To smooth the process, the presidency had deliberately used language that could be read in different ways — described, with a touch of irony, as "constructive ambiguity."
A step back from the 2001 rules
None of these points opened the institutions further to the public; on the contrary, each represented a step backwards for transparency compared with the rules adopted in 2001. Members of the European Parliament argued that the crisis called for more openness, since citizens were being asked to make large sacrifices under austerity measures decided by the EU. Such arguments had so far made no visible impact on the EU governments.
Negotiations held behind closed doors
Trilogues, or three-way negotiations, had become the most common way of adopting EU laws. They saved time by shortcutting an otherwise lengthy process, but took place behind closed doors, with little possibility for anyone beyond the negotiators to follow — let alone influence — the outcome. The future rules for openness were thus worked out in secrecy. The breakdown of the earlier attempt to reform the same rules is described in game over, nobody won.
The Danish calculation
The proposal brought closer to a decision was not exactly what the Danish government would have preferred from a purely national position. But as holder of the rotating presidency, Denmark felt an urge to push the procedure forward to reach a decision before Cyprus took over on 1 July. The Danish presidency was also believed to reason that this was as good as it would get between the member states, and that it was now up to the Parliament to react — with any resulting changes only for the better.
That line of reasoning ran close to the Swedish minister's own. Ask directed a further appeal to the Parliament: "I've been clear all the time that I will not accept changes in the access regulation that might lead to less transparency, and I certainly stand by this commitment. If Sweden and other pro-transparent countries are overruled in the Council, we will have to put our trust to the European Parliament. The Parliament's position from December last year showed a clear endeavour towards more openness. I assume the Parliament stands firm on this position."
Frequently asked questions
Why did Sweden refuse to back the Danish mandate?
Swedish justice minister Beatrice Ask believed the negotiating mandate would pull in the direction of less openness, and warned it risked being worse than the Commission's 2008 proposal. She instructed the Swedish EU ambassador not to endorse it.
Which documents would the proposal have kept out of reach?
Reported exclusions covered infringement procedures, competition cases such as cartels, mergers and state aid, court proceedings, and legal-service advice on disputed matters — plus a member-state veto over documents they had sent to the institutions.
What is a trilogue?
A trilogue is a three-way negotiation between the Council, the Commission and the Parliament used to agree EU legislation. It shortens the process but takes place behind closed doors. For background on using access laws, see how to use European freedom of information.