Openness, Transparency and the Right of Access to Documents in the EU

THIS IS AN  “In-depth analysis” FOR THE PETITIONS COMMITTEE OF THE EUROPEAN PARLIAMENT. FULL TEXT ACCESSIBLE HERE 

AUTHORS : Deirdre CURTIN, Päivi LEINO-SANDBERG.

Abstract . Upon request of the PETI Committee, the Policy Department on Citizens’ Rights and Constitutional Affairs commissioned the present analysis, which examines the situation in relation to openness, transparency, access to documents and information in the EU. Case law and developments in the jurisprudence of the CJEU are examined, notably for legislative documents, documents relating to administrative proceedings, to Court proceedings, infringement proceedings and EU Pilot cases, protection of privacy and international relations. Current and future challenges, as well as conclusions and policy recommendations are set out, in order to ensure compliance with the Treaties’ and Charter of Fundamental Rights’ requirements aimed at enhancing citizens’ participation in the EU decision-making process, and consequently stronger accountability and democracy in the EU.

  1. OPENNESS, TRANSPARENCY AND THE RIGHT TO ACCESS DOCUMENTS IN THE EU

The Treaty of Lisbon, in force since December 2009, includes a number of reforms emphasising open-decision making, citizen participation and the role of transparency and good administration in building up the democratic credentials of the European Union (EU).

As regards democratic decision-making and transparency in particular, a specific Title in the Treaty on the European Union (TEU) now includes a number of core provisions on democratic principles, applicable in all areas of Union action.

They underline the principle of representative democracy through the European Parliament, representing the citizens directly at Union level, and through the governments forming the European Council and the Council and that are democratically accountable either to their national parliaments, or to their citizens.1

Even participatory democracy enjoys a pivotal role in the new Treaty framework; in order to guarantee the right of ’every citizen’ to ’participate in the democratic life of the Union’, the Treaty establishes that ’[d]ecisions shall be taken as openly and as closely as possible to the citizen’ and that both citizens and representatives should be given opportunities to ’make known and publicly exchange their views in all areas of Union action’.2

These provisions have a linkage both with the new citizens’ initiative3 and with Article 15 TFEU, which places the legislature under an obligation to act publicly, and establishes that citizens have the right to access documents held by all Union institutions, bodies and agencies.

The right of access to documents, and its nature as a fundamental right, is further emphasised by Article 42 of the EU Charter of Fundamental Rights, which now enjoys ‘the same legal value as the Treaties’.4

In practice, open decision-making is to a large extent realised through the right of the general public to access documents. Regulation No 1049/2001 on public access to documents held by the EU institutions (Access Regulation),5 builds on the principle of ‘widest possible access’, and has together with case law been instrumental in operationalising the right of citizen access by establishing procedures and standards for the exercise of their democratic rights.

All documents held by the European Parliament, Council and Commission are public, as the main principle, but certain public and private interests are protected through specific exceptions under Article 4. But as exceptions derogate from the principle of the widest possible public access to documents, they must, according to established case-law, be interpreted and applied narrowly.6

Article 15(3) TFEU extends the public right of access to documents of all the Union institutions, bodies, offices and agencies. The Court of Justice, the European Central Bank and the European Investment Bank are subject to this provision only when exercising their administrative tasks.

The original 2001 Regulation only directly applies to the European Parliament, the Council, and the Commission. However, its application has been extended to the agencies by virtue of a specific provision in their respective founding acts. Furthermore, a number of institutions and bodies have adopted voluntary acts laying down rules on access to their documents which are identical or similar to Regulation No 1049/2001.

It has been 15 years since the adoption of Regulation No 1049/2001. In the same time frame the Commission and the Council set about adopting internal rules based on their rules of procedure on security and other classifications for documents. Such rules continue to exist in amended form today and exist alongside the legislative rules on access to documents.

Discussions on the reform of Regulation No 1049/2001 have been pending since 2008.7

While one would think that the tendency was – in line with the recent Treaty reforms – to strengthen the rights of citizens further, in fact the opposite seems to be the case, with discussions on reform mainly circulating around new ways to limit citizen access,8 many of them in rather fundamental ways that seem to be at odds with the letter of the Treaties.

These discussions bear witness to what seems to be a change of paradigm and priorities.

The tendency since the Treaty of Maastricht has been to strengthen the rights of citizens,9 now this objective seems lees squarely at the forefront of either the policy agenda or actual institutional practice. Staffan Dahllöf, a journalist specialising in freedom of information, describes the situation as follows: The voices asking for openness and citizen’s involvement are today weaker and fewer than they were when the present rules were decided in 2001 – at least amongst the Member State governments, and definitely in the Commission. It’s more like the Empire strikes back.10

Since there is a complete impasse in the legislative procedure (already for a very long time) on amending the 2001 Regulation, the role of the CJEU is very much centre-stage with litigants attempting to challenge a range of embedded secretive practices across a range of institutions and tasks.11

From a democratic point of view this can be considered problematic as it shifts responsibility from the EU legislator to the courts who cannot re-design the system in the required manner but deal with issues on a case by case basis, as and when they are brought before it. The same applies to the European Ombudsman, although her work is increasingly significant in bringing specific secretive practices to light and tackling them both on a case by case basis and more structurally through a growing number of own initiative enquiries.

Keeping in mind Dahllöf’s accurate observation quoted above, opening negotiations on the reform of Regulation No 1049/2001 naturally brings with it a risk of discussions leading to a further tightening of the EU transparency regime. The current Commission is not necessarily positively disposed to increasing transparency (as evidenced in legal observations before the CJEU in particular), and it has the backup of the majority of Member States in the Council.

Despite this, we think that there should be an open discussion about the possibilities of increasing openness. If this proves to be impossible, the Parliament can always block any reform that could result in negative outcomes or a levelling down.

In this note we discuss recent developments in jurisprudence and the challenges that currently exist in the application of the Regulation No 1049/2001 with a focus on public access by citizens. We conclude with a number of policy recommendations for consideration.

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NOTES (to the section above)

1 Article 10(1) and (2) TEU.
2 Article 10(3) TEU, Article 11 TEU.
3 See Regulation No 211/2011 on the citizens’ initiative, OJ L [2011] 65/1.
4 Article 6(1) TEU.
5 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145/43.
6 See e.g. C-280/11 P Council v Access Info Europe para 30 and the case law quoted in the paragraph.
7. See e.g. Ian Harden, ‘The Revision of Regulation 1049/2001 on Public Access to Documents’, 15(2) European Public Law (2009) 239-256.
8 See the open letter by Beatrice Ask, Minister for Justice, Sweden and Anna-Maja Henriksson, Minister of Justice, Finland, published at http://www.wobbing.eu/sites/default/files/Open%20letter.pdf.
9 For one account of the EU’s transparency development so far, see Deirdre Curtin, ’Judging EU Secrecy’, Cahiers de Droit Européen, 2012 (2) 459 – 490.
10 Staffan Dahllöf, ‘Guide to the battle of transparency – UPDATED’, 09/06/2012, available at the EU wobbing website http://www.wobbing.eu/news/guide-battle-transparency-%E2%80%93-updated. On the varying positions of the Member States to the reform process, see M.Z. Hillebrandt, D.M. Curtin and A.J. Meijer, ‘Transparency in the EU Council of Ministers: An Institutional Analysis’, 20(1) European Law Journal, 2014, 1-20.
11 For a discussion, see Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014).

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