The negotiations over new EU rules on citizens' access to documents pitted governments with different administrative traditions against one another, overlaid with an institutional power struggle — a contest, in effect, between administrative efficiency and democratic openness. This guide sets out the main areas of conflict in the recast of the access regulation. Where the latest changes are noted, they reflect a draft that national experts rejected at a working-party meeting on 8 June and that may be only of historical interest, depending on how matters developed.
The dispute was not only about rules and traditions but about two opposing philosophies. On one side stood the transparency, or enlightenment, argument: that citizens have a right to know, to understand and possibly to intervene in matters decided in their name, and that any disturbance this causes is the price of democracy. On the other stood the considerations of the system: that work in progress should not be disturbed, and that what matters is the final outcome rather than the bureaucratic process. Although the deepening economic and political crisis might have been expected to strengthen the democratic case for the EU's legitimacy, the voices calling for openness and citizen involvement had grown weaker and fewer than when the rules in force were agreed in 2001 — among member-state governments, and especially in the Commission.
The regulation under negotiation
The area-by-area screening below broadly follows the article numbering of the regulation then in force, Regulation 1049/2001. The most recent compilation of positions was document 1397/12, based on an earlier annex (9441/12) and known as the negotiating mandate or presidency compromise; heavily criticised at the 8 June working-party meeting, it was not put forward for endorsement by EU ambassadors but could serve as a reference for further debate. In the summaries that follow, the "proposal" is the negotiating mandate given to the presidency by the Council majority, and the arguments for and against are drawn from official documents, leaked information and interviews with different actors.
Definition of documents
Under the regulation in force, a document was any content, written or digital and whatever its medium, concerning an institution's sphere of responsibility. The proposal would have made documents inaccessible until received, transmitted, filed, approved or "otherwise completed for the purposes for which it was intended", with data to be made accessible using "the available tools". It was unclear whether a new Article 12 — emphasising that legislative documents and documents of general application should be directly accessible to the public — would override, or be overridden by, the extended time for documents to be deemed complete.
The June draft extended the definition to cover most, but not all, legislative documents, subject to exceptions and classifications in a new Article 3b, and narrowed the online-publication obligation in Article 12 to legislative rather than all documents. It covered preparatory documents and material provided by lobbyists, but not legal advice, member-state positions in working-party papers or trilogue documents — a clear narrowing compared with what the Parliament had demanded — while adding a new requirement to create an inter-institutional portal within two years.
Supporters argued the change would clarify the rules and ensure that notes, internal working papers and civil servants' personal reflections fell outside their scope. Critics warned it would limit access, give institutions more "time to think" and "time to act" behind closed doors, and expand reliance on the existing ground that disclosure would "seriously undermine the institution's decision-making process". The Parliament and the Ombudsman, P. Nikiforos Diamandouros, preferred that data be accessible by "any reasonable available tools" rather than merely "the available tools", and negotiators for the Parliament argued that preparatory documents, legal advice, impact assessments, member-state positions and lobbyist input should be clearly covered and therefore accessible.
Exceptions from access
The regulation in force generally withheld documents on court proceedings, legal advice, commercial interests and investigations "unless an overriding public interest in disclosure" applied; legal advice on legislative matters had been judged accessible by the Court of Justice in the Turco case (C-39/05 P), though in practice the Council still held much of it back. The proposal would have added a block exception for selection procedures for contracts, grants and public offices, and strengthened the exception for legal advice with a presumption of secrecy. According to minutes of ambassador meetings published by Statewatch, "the principles underlying this regulation do not in themselves constitute such an overriding public interest" — in other words, transparency was not to count as an overriding public interest. The June draft made this more explicit, in what critics described as an attempt to align the regulation with a practice at odds with the Turco judgment.
The Commission argued that investigations, infringement procedures, legal advice, commercial interests, selection procedures and court proceedings had to be protected before, and sometimes after, final decisions, or it and the Court could not perform their duties properly; a majority of member states agreed. Opponents held that access would be curtailed across much of the EU administration, and that secrecy over court proceedings and legal advice reduced citizens' ability to know what was decided in their name, how laws should be interpreted, and how to influence decisions.
Privacy and data protection
The rule in force denied access where disclosure would undermine an individual's privacy and integrity. The proposal kept broadly the same wording, adding that a person's professional activity and the nature of their role and responsibility "should be taken into account". In 2010 the Court of Justice had found, in the Bavarian Lager case (C-28/08 P), that disclosing the names of participants in a committee meeting on restricting German beer imports to the UK would be unlawful processing of personal data; unchanged wording would have cemented that judgment. A separate package of data-protection rules proposed by the Commission was not expected to be finalised until after the access recast.
The June draft specified that the names, titles and functions of public office-holders, civil servants and interest representatives should as a presumption be disclosed — an attempt to roll back the Bavarian Lager judgment. Supporters presented it as an adjustment to case-law; the European Data Protection Supervisor, Peter Hustinx, considered the judgment unbalanced because it disregarded access as a fundamental right, and suggested alternative wording that weighed the right of access more heavily. That suggestion was taken up by the Parliament, NGOs and pro-transparency member states.
Member-state documents
Under the existing rule, a member state could request that the EU not disclose one of its documents, though the decision rested with the EU institution. The proposal would have let a member state refer to any relevant provision of its national law when requesting non-disclosure. Supporters wanted national legislation recognised as a legitimate ground for refusal; opponents argued that, although the deciding power remained with the institutions, the reference to national law was new and lent weight to claims that member states could invoke more restrictive rules than had been agreed at EU level. The latest draft removed references to national law as a ground for withholding documents.
Restrictions and time limits
Under the rule in force, an institution handling a very long document could confer with the applicant to find a fair solution, and applications were to be handled within 15 working days, extendable by another 15. The proposal would have required the institution to seek such a solution and, failing agreement, allowed it to disclose only a more limited number of documents; applications could be extended by 5 working days where a member state was consulted, with the member state given 10 working days to reply, and appeals — confirmatory applications — handled within 30 working days. Supporters said the changes were needed to manage workload and counter misuse by lobbyists and lawyers. Opponents said they lowered the standard of access, and that workload was an excuse rather than a real reason, which a Commission representative was said to have conceded privately.
Other issues
Remaining questions included references to the Aarhus Convention and the EU regulation based on it governing access to documents on environmental matters, the treatment of classified documents, and a Parliament proposal to appoint information, or transparency, officers. The June draft included transparency officers designated by the institutions to manage the regulation, under a new Article 15(1a), as suggested by the Parliament's rapporteur, Michael Cashman.
Analyses and objections
Further analysis came from a letter to the presidency based on an assessment by Access-Info Europe and ClientEarth, and from an article-by-article commentary setting out "red lines" for the negotiations and criticising the recast procedure, prepared by Professor Steve Peers for Statewatch. Statewatch also maintained an observatory on the regulation on access to EU documents covering the negotiations from 2008 onward. Readers seeking practical steps for making a request can consult the guide on how to use European freedom of information.
Frequently asked questions
What regulation was being revised?
Regulation 1049/2001 on public access to European Parliament, Council and Commission documents, whose recast was under negotiation among the EU institutions and member states.
What was the central disagreement?
Whether openness and citizens' right to know should take priority, or whether protecting the decision-making process and administrative efficiency justified withholding more documents. Successive proposals leaned toward narrowing access.
What happened to legal advice under the proposal?
The draft sought to strengthen a presumption of secrecy over legal advice, which critics said conflicted with the Court of Justice's Turco judgment that legal advice on legislative matters should generally be accessible.