As clearly explained in the previous post (Henri Labayle study on Access
to documents) Transparency and good administration have become a core element
of the post-Lisbon Constitutional Framework (1) However, notwithstanding the
recurrent rhetoric declarations and promises in these pre-electoral days by
several political figures at European and national level, four years after the
entry into force of the Treaty and of the Charter the situation is even worse
than before.
It is then more than likely that the the best supporters of the Eurosceptic
movements are in these days the EU institutions and the Member States which are
still blocking the reform of the EU rules on access to documents and whose
daily practices are often contrary to the Treaties, the legislation into force,
the ECJ jurisprudence and probably their own internal rules
A dead end for the rules on access to documents (Regulation
1049/01) ?
The EU legislative framework on access to documents dates back to 2001 when
Regulation 1049/01 was adopted. It was against the unwillingness of the
Commission and of several Members States but it was a success because of a
(temporary) strong political majority in the European Parliament, a skilled
Swedish Council Presidency and clear support by the civil society.
However in the following years notwithstanding a growing support by the
European Court of Justice Jurisprudence the Council and Commission practice has
tried to rebuild the previous opaque practices. Paradoxically the turning point
has been after the groundbreaking “Turco” Case (C-39/05
P and C-52/05 P Sweden and Turco v Council and Commission, judgment of 1 July
2008) by which the Court considered that openness“contributes to strengthening
democracy by enabling citizens to scrutinise all the information which has
formed the basis for a legislative act. The possibility for citizens to find
out the considerations underpinning legislative action is a precondition for
the effective exercise of their democratic rights”(Sweden and Turco
v Council, paragraph 46). In this perspective the Court of justice considered
that it was also admissible to have access even to the Institution’s legal
service opinions notably when dealing with the soundness of legislative works
(2).
Needless to say the Member States considered this ruling as a blow to their
daily practice in the Council working groups and with the support of the
Council Secretariat invoked more and more often as an exception to the
Citizen’s right of access to documents the need to protect the “efficiency of
the decision making process”. Regrettably the Commission instead of supporting
the minority of the “transparency minded” MS joined the majority of the Member
States contrary to a wide interpretation of the access to documents principle
and rejected the EP request for a more ambitious revision of Regulation
1049/01.
The Bruxelles Executive has lastly been obliged to submit a new text in 2008
(after the signature of the Lisbon Treaty and following a formal EP request to
submit a new legislative proposal).
At the entry into force of the Lisbon Treaty the EP voted on December 15, 2011
its position on the 2008 proposal by taking in account not only the new Treaty
Framework but also the ECJ jurisprudence going then much further than the
original proposal of the Commission.
The EP position was
not supported by the Commission which considered that it was too ambitious to
obtain a support by the Council. The argument was (and still is ) well founded
because the main EU Countries (FR, DE, IT and even UK) are against this reform
but the Commission could had modified at its 2008 proposal by integrating at
least the ECJ jurisprudence (3).
On the Commission side the main concern was that improved transparency could
had curtailed the internal administrative procedures such as the ones dealing
with competition cases.
But this was more a problem of administrative procedures than a problem of
transparency and it could had been easily solved by complementing the revision
of Regulation 1049/01 with new EU rules framing the principle of good (open,
independent, and efficient) administration (as envisaged by art. 298 TFEU and
by the Charter). Again, the answer of the Commission to a new specific EP
request to submit a “good administration” legislative proposal has been that it
is …too early.
With legislative works still blocked on the Council side it has now to be seen
if the election of strong euro-sceptics group in the 2014 will not
paradoxically reopen the game also on the Member States side..
In the meantime confidentiality is spreading in the EU
institutions through informal dubious legal solutions ..
The main move of the Member States to avoid the obligations arising from the
Turco Jurisprudence and now the Lisbon Treaty has been to build on the Council
internal internal security rules a full fledged new legal regime for an
ambiguous new category of EU documents: the EU Classified informations (EUCI).
These documents cover at the same time EU and MS documents classified according
to the Nato Standards as “restricted”, “confidential”, “secret” and “top
secret”.
In theory the principle to be followed when dealing with this kind of documents
should be the ones of Regulation 1049/01 (art. 4 and 9) as well as of any
future Regulation to be adopted on the basis of art. 15 TFEU and 41 of the EU
Charter.
However to define these principles at legislative level will require the
codecision with the EP and Member States prefer to avoid such a risk (even if
there are more and more MEP which are abandonning the original pro-transparency
attitude). So, to obtain the same practical result the Council has decided to
transform its internal security rules in a general standards to be followed by
any subject wanting to share with him the same kind of informations.
The Council “internal” security rules have then been mirrored in the Commission
“internal” security rules, and the same happened with the EU Agencies and
bodies and the Member States via administrative agreements.
Last but not least, also the European Parliament has accepted to follow the
same standards and has concluded a simila interinstituional agreement with the Commissionand
with the Council. By so
doing it has also accepted even standards and obligations which are not founded
on regulation 1049/01 (such as the generalization of the “originator
principle”(4)”
A new general quasi-legislative framework has then been created by de facto
restricting the Citizen’s fundamental right of access to EU public documents
(inclear breach of art. 15.3 of the TFEU).
..and how better structure the internal work to avoid the citizen’s direct
access to preparatory documents.
The Council has also jeopardized some of the practical measures established by
Regulation 1049/01 to make easier the access to its internal documents. The
main example is the Register of Council documents where notably all the
legislative preparatory documents should be timely listed so that they can be
obtained or directly downloaded.
The Councl register which was created even before Regulation 1049/01 is still
working and is an excellent tool to monitor the Council activity.
However the “minor shortcoming ” is that not all the Council preparatory
documents are registered : quite the contrary.
This is the case for some thousands “restricted” documents which are now
excluded as they where “Top Secret” documents the existence of which should not
be known.
Secondly the Council do not list in the register thousands of “Document the
séance”(DS) which are deemed to be documents written during a meeting of a
Council working group but which in reality are prepared weecks before and could
be of hundred pages (such as the multicolumn documents where the position of
the Commission, of the Parliament and of the Council are placed side by side to
better understand the position of the legislative institutions.
Then there are the vast majority of preparatory documents which are listed in
the register and which registered, deal with legislative procedures, but which
are not directly accessible and are coded as “LIMITE”. This code means that the
document is not “classified” but its diffusion is “limited” to some ten
thousand people in the Commission or in the national Parliaments but, quite
surprisingly not in the European Parliament.
Quite surprisingly the EP did’nt seriously contested this practice even if the
access to this kind of information should be granted not only for the sake of
transparency but even more for the principle of sincere cooperation between the
EU institutions. Moreover as the codecision has become the (almost) general
rule it would be quite logic that the two institutions on which the EU
legitimacy is founded (art.10 TEU) share the same informations as it already
happen since sixty years with the Commission.
The Secretary General of the Council is so attached to this kind of LIMITE
document that in a recent (public) note of October 16 it
has evoked the professional secrecy principle (which could not be considered a
general exception) and it has denounced the fact that :
“There have also been a number of cases where such documents have
been published by national Parliaments. Such documents are made available to
Member States in their capacity as members of the Council. It is for each
Member State to determine to whom, within its political and constitutional
structures, it is necessary to provide access to document internal to Council
in order to enable their representatives to carry out their functions as
members of the Council. However in so doing Member States are responsible for
ensuring that such documents are handled in accordance with the legal
obligations arising under the Treaties and secondary legislation including the
obligations of confidentiality.”
In other words according to the Council Secretariat documents which are mainly
referring to EU legislative preparatory works and which according to the
Treaties should be publicly debated in Parliament and in the Council should be
treated only by the people which has a speific right to access. But if you
collect all this kind of legal and practical limitations and exceptions is not
the rule itself which is jeopardized and the democratic participation required
by the Treaties and by the Charter whiich will be the victim ?
The irony is that the publication of this note the Court of justice adopted the “Access Info”ruling
according to which and as a complement of the Turco case also the names of the
national delegations participating to a legislative proceeding should be
accessible to improve the democracy of the Institutions decision making process.
Last but not least : how to build a trafic jam with only three
cars…
To have the final proof that the multi-billion EU institutional decision making
machinery is growing anarchically you have to try to collect in the three
legislative institutions all the preparatory documents linked with the same
legislative procedure (let’s say the data protection reform) in a given time
period.
First you should know who is the in charge of this issue (who in the EC general
Directorates, who in the EP Committees, who in the Council working Groups) then
you have to find the internal agenda, and find in the agenda if there are
documents which can be linked with the subject of your search. When all these
informations have been collected, analysed and connected you may have a general
idea on the situation and the foresseable future of the issue or you can turn
to one of the thousand lobbyst groups who have already done this work and which
tell you what is deemed to happen.
This permanent trafic jam should be avoided because a legislative procedure is
not an happening: the Treaty details each phase of the co-decision procedures
and the three institutions should follow very strict internal rules to manage
their internal workflow to make possible that the right persons receive the
right documents in a given language for a given meeting.
It would then be an easy tasl thirteen years after the entry into force of
Regulation 1049/01 to build a common legislative monitoring tool which will
make easier such a search at the same time in the three institutions also
because the vast majority of the legislative procedures (80%) are currently
dealt in parallel within the so-called “firts reading agreements” during the
Parliamentary phase.
In the Google era it would be a trivial issue to agree between the three
instiutions common metadata and to rediffuse them to the external world
following the standard that the EU itself has imposed to its member states with
the Directive on the
re-use of the public sector informations (PSI Directive).
However this would be a too easy solution but it would require a dayly mutual
cooperation which apparently is not the first priority. The paradox is that to
cover this lack of cooperation the three institutions are increasing the
firework of streamings, twitter messages and uncoordinated informations and
standards on their activity by so creating further confusion and noise instead
of giving the possibility to the ordinary citizen to obtain the information is
entitled to receive on a given subject.
It is more than likely that this situation will continue also in the coming
months and years so that it will be up to the Citizens themselves to do what
the institutions do not want to do. It is already started with Parltrack an
internet site which re-use the European Parliament internal informations. Let’s
hope that the same could happen for the Council and that all the informations
would be made available to the external world. However it is more and more
evident that it is easier to change the treaties than the culture of EU
burocrats and diplomats…..
NOTE
1 See art. 1 and 11 TEU, 15 and 298 TFEU and art. 41 and 42 Charter
2 The point of the Court was that open debate on divergent point of view by
contributing to the Citizen’s participation strengthen the democratic principle
in the EU. Disclosure of a specific legal opinion may be refused only if this
poses a real risk to the interest of the institution concerned in seeking and
receiving frank, objective and comprehensive advice.
3 See Access Info Europe, T-233/09, In ‘t Veld, T-529/09, Toland, T-471/08,
Kathleen Egan and Margaret Hackett, T-190/10, My Travel, C-506/08, IFAW,
C-135/11 P, Germany v Commission case (T-59/09),
4 According to the “originator” principle the authorisation of the author is
needed to declassify an information. However the EP constitutional prerogatives
should be limited only by the law and not by the will of a person.