More than 200 civil-society organisations asked the European Parliament to reject a proposal for new rules on access to EU documents, arguing it would be a step backwards, while the Commission stood firm — leaving one diplomat to describe the choice ahead as one between plague and cholera.
What civil society asked for
Civil-rights campaigners, journalists' unions, non-governmental organisations and individuals asked the European Parliament to keep the current definition of a document so as not to weaken the existing rules of access to EU documents. In an open letter the signatories also called on lawmakers to bring any new regulation into line with the pro-transparency rulings of the Court of Justice of the EU, to keep the existing deadlines for applications, and to extend the scope of the access rules to all EU bodies. The substance of that appeal is set out in the account of the open letter to the Parliament.
The criticism echoed the position of the European Ombudsman, P. Nikiforos Diamandouros, and the sharp comments of the European Data Protection Supervisor, Peter Hustinx. The message from civil society, coordinated by the campaign group Access Info, also went down well with a majority of the parties in the European Parliament, as shown during a recent meeting of the Committee on Civil Liberties, Justice and Home Affairs (LIBE).
The rapporteur and the deadlock
Michael Cashman (United Kingdom, Labour), a Member of the European Parliament, was the rapporteur responsible for the main parliamentary report on the subject. He was backed by most speakers, with the exception of the large conservative group, the European People's Party (EPP), and was highly critical of the proposal to recast the existing rules known as Regulation 1049/2001, a recast that had been tabled in 2008. Had the pattern seen in the LIBE committee held at a later plenary session, there would have been a comfortable majority in the Parliament in favour of transparency, since the EPP group accounted for 265 of the Parliament's 736 members. Parts of the Parliament's criticism, however, clashed directly with the two other EU institutions, the Commission and the Council. The wider dispute is traced in the account of sharpened conflicts over new access rules.
Beyond defending the existing rules, Cashman also proposed common rules on classified documents across the EU institutions. He suggested that a security-vetted committee in the Parliament be given the same access to top-secret documents as politicians and civil servants had in the Commission and the Council; the committee would not be allowed to report its findings but would act as a watchdog over the two other institutions. The Commission rejected this proposal outright, as Jens Nymand Christensen of the Commission told members of the LIBE committee at a meeting on 31 January. Pro-transparency member states in the Council also found it hard to keep a united front with the Parliament while the classification proposal stood, on the argument that it was an inter-institutional question rather than one about public access to documents.
Why deadlock no longer looked safe
With none of the three EU institutions willing to give ground, the most likely outcome was a continued deadlock and no major change to the existing access rules. That prospect had previously been welcomed by pro-transparency campaigners as a good, or at least a less harmful, result — but no longer. Rulings by the Court of Justice, such as the Bavarian Lager case and the case on public farm subsidies, had changed the picture, and the notion of the Court as a beacon of transparency was less vivid than it had been a few years earlier.
A diplomatic source with contacts on all sides gave a gloomy assessment, saying it was no longer safe to stick to the present rules and hope for good case law from the Court, and that the situation was approaching a choice between plague — good present rules with accelerating bad case law — and cholera — bad new rules with some good historical case law. Neither the Commission nor the Council was expected to take any new initiative until the Parliament had taken its stand on the Cashman report, and there was no fixed date for further discussions or an eventual vote. The mechanics of using the access rules themselves are set out in the guidance on how to use European freedom of information.
Frequently asked questions
What did the civil-society organisations want?
They asked the Parliament to keep the current definition of a document, align any new regulation with the Court of Justice's pro-transparency rulings, keep the existing application deadlines, and extend the access rules to all EU bodies.
What was the Cashman report?
It was the main European Parliament report on the recast of Regulation 1049/2001, prepared by rapporteur Michael Cashman (UK, Labour), who was critical of the proposed new rules tabled in 2008.
Why was deadlock seen as a problem?
Keeping the present rules had once been welcomed as the safer option, but Court of Justice rulings such as the Bavarian Lager case and the public farm subsidies case had made continued reliance on favourable case law look less secure.