Revised Access Rule to Be Kept in the Freezer

There would be no change to the present EU rules on access to documents under the then Commission and Parliament. Reform of the rules was "not on the priority list", EU-commissioner Maroš Šefčovič said.

Time running short before the mandates end

Time was running short for the Barroso Commission, whose five-year mandate was to terminate the following year, and for the European Parliament, which faced elections in May 2014. March, and at the latest April of the following year, would thus be the last chances to pass new legislation until a new Parliament had been elected and a new Commission appointed and come into office.

This affected the proposed recast — also called a revision — of the present rules on access to documents (Regulation 1049/2001), a recast that had been in the making since 2008 without leading to a result. The two institutions were considering what could be dealt with before the bell tolled.

During a debate in Brussels on the occasion of Right to Know Day (29 September), commissioner Maroš Šefčovič was asked about the timing of a decision on new rules. His answer came promptly: "Right now we are really approaching the end (of the mandates) and have had very intensive talks between the institutions. This issue is not on the list of priorities for March and April," he said. A video of the seminar, arranged by the outgoing Ombudsman Nikiforos Diamandouros, was made available by the European Ombudsman.

The Treaty rules?

The implications of a continuing stalemate were not crystal clear, as different actors held different interpretations. Formally, all EU institutions besides the Commission, the Council and the Parliament were to be covered by the same access rules. This follows from the Lisbon Treaty (Article 15 of the Treaty on the Functioning of the EU), although special exceptions apply for the European Central Bank and the European Investment Bank. But as long as a recast regulation was missing, the treaty had not been fully implemented, the argument went.

Another opinion was expressed by the Parliament's legal service, which argued that the Treaty ruled automatically as the primary source of EU law, similar to a constitution. In short: the same rules applied to all institutions regardless of whether there was a new regulation or not. As for the effects on transparency in reality, there were also differing opinions.

Roll back or clearer definitions

A number of critics — notably the majority in the Parliament and several pro-transparency member states — believed that the changes proposed by the Commission and favoured by a majority of member states would mean a roll back of access rights. This was based on the proposal's narrowed definition of "documents", broader range of exceptions, stronger weight on the right to privacy as opposed to transparency, and extended time limits. In their view it was better to stick to the present rules, in spite of their shortcomings, than to accept changes for the worse. Related developments were traced in an open letter on what not to do to citizens and in the account of how the game was over and nobody won after the final breakdown in June 2012.

The Commission, denying any intention to weaken the present rules, argued it was in everybody's interest to specify the exceptions to access. "We are not rolling back, we just want to make things clear. We want to open access too and we have to move forwards," commissioner Šefčovič said at the seminar.

Nikiforos Diamandouros, the outgoing Ombudsman, said in his introductory remark: "I was involved in the reform of Regulation 1049/2001 on access to documents. This sadly appears to have been put on ice. I can only appeal to all parties involved that whatever compromise emerges, it should ensure that citizens enjoy more rather than fewer rights to access documents."

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