EU Access-Rules Reform Fails but the Lisbon Question Remains

The attempt to recast the European Union's existing access-to-documents rules had failed, but the issue remained on the agenda. An adjustment to the Lisbon treaty, in one form or another, was still a live option.

While coverage described the negotiations in terms of collapse and breakdown, the underlying facts were narrower: the Danish presidency had given up its attempt to push a recast of the existing rules and had withdrawn its latest proposals. In formal terms this counted as a failure, since Denmark had not been able to meet expectations of a skilled negotiator. In practice, few presidency sources mourned the outcome; a typical comment noted that a small adjustment to the Lisbon treaty was still being considered, and that a serviceable regulation had been in place since 2001.

Common sense

MEP Michael Cashman (UK, Labour), the Parliament's rapporteur and negotiator, did not blame the presidency. He said the presidency had conducted a valiant exercise, but that the Commission had constantly failed to bring any of the proposed amendments forward — recalling that when the presidency wanted to suggest a new definition of documents, the Commission had asked why. The announced failure also drew positive reactions. Tony Bunyan, director of the documentation centre and civil-rights watchdog Statewatch, called it "a victory for common sense", arguing that all the alternatives on the table would have fundamentally undermined openness. Jonas Nordling, president of the Swedish Journalists' Union, said the current rules were preferable, because both the Commission's original proposal and the mandate underlying the tripartite negotiations would have clearly weakened transparency for citizens; he added that it was a weakness on the Commission's part not to live up to the Lisbon treaty's call for greater openness.

Demands from the treaty

The remaining question was whether the existing rules should be adjusted to the Lisbon treaty. There were two reasons for doing so. First, the treaty spelled out that all EU bodies — not only the Commission, the Parliament and the Council — should be covered by the transparency rules, to be addressed through a regulation. Second, the treaty made explicit reference to good governance and the participation of civil society (Article 15.1 of the Treaty on the Functioning of the EU) in connection with access to documents (Article 15.3), stressing that the Parliament and the Council should ensure publication of the documents relating to legislative procedures, in the plural.

Tony Bunyan of Statewatch said this made "Lisbonising" trickier than the presidency might think. He noted that the Council and the European Parliament had to meet in public when considering draft legislative acts and to ensure publication of the documents relating to legislative procedures — giving the Parliament a real opportunity to insist that the treaty obligations were fully met. He added that all documents concerning legislative procedures had to be made public, including those discussed between the two legislatures in first- and second-reading trilogue meetings, which were then kept secret.

Lisbonising Plus

On how to proceed, Michael Cashman said a "slim reform" to adjust to the Lisbon treaty was not really needed as such, since the treaty was already in force. Going down that line, he said, would require a package that not only covered all the institutions but also balanced privacy and transparency, enforced transparency officers and added a political declaration for the future. In short, the Parliament would not settle for a small adjustment; it was demanding a "Lisbonising Plus". On paper such demands sat well with the pro-transparency minority in the Council, but in practice that could not be taken for granted. There was also a fear that prolonged discussion might produce a backlash undermining the existing rules, and that a further round of negotiations would yield nothing better than what had already been achieved.

Who takes the initiative

The Commission, which holds the monopoly to initiate new EU laws, was reported to have lost interest and to have declared that it would not put forward its own Lisbonising proposal from 2011. The outgoing Danish presidency was hesitant about what to do. Some of the major countries in the Council, however, had shown an interest in resolving the issue, and an upcoming meeting of EU ambassadors, known by the French acronym COREPER, was expected to pick up some of the pieces. For an overview of how these access rules can be used in practice, see how to use European freedom-of-information laws.

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