| Author (Person) | Thomson, Ian | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Publisher | ProQuest Information and Learning | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Series Title | In Focus | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Series Details | 31.1.00 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Publication Date | 31/01/2000 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Content Type | News, Overview, Topic Guide | In Focus | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
The European Commission adopted on 26 January 2000 a draft proposal for a Regulation on public access to European Parliament, Council and Commission documents. Background The last decade has seen much high-level discussion of questions relating to information and communication, openness and transparency in the European Union, arising, in particular, from the difficulties associated with the ratification of the Treaty on European Union (the 'Maastricht Treaty') in 1992 and 1993. The issue of how effectively the EU informs and communicates has become a significant political question, discussed at the highest levels of the Union. Whilst there are those who argue that the EU is a relatively open organisation, nevertheless, the last few years has seen increasing criticism from civil liberties', consumer and environmental groups about a lack of openness in EU policy-making. The accession of Sweden and Finland, along with Austria in 1995, was also important as the Scandinavian countries, in particular, have alternative traditions of public policy-making and administration which challenge traditional EU policy styles, particularly in the question of 'access to documents'. See, for example, a paper from Finland's Ministry of Justice outlining the background to the Scandinavian tradition and the details of Finland's The Act on the Openness of Government Activities, which entered into force on 1 December 1999. Finland was part of Sweden when the first Act on the Freedom of Publishing and the Right of Access to Official Documents was enacted in 1776. It was the first Act of its kind in the world. The right of access to information in official documents is now a basic right protected by the Constitutions of these countries. The European Ombudsman has also involved himself with the question of access to documents extensively. See, in particular, the Special Report by the European Ombudsman on access to documents issued in December 1997 and the ensuing draft Recommendations and a speech given by the European Ombudsman, Jacob Söderman, at an EIPA seminar in 1997. The second report of the Committee of Independent Experts on the reform of the Commission issued on 10 September 1999 says in Chapter Seven that one of the features which most concerns it is
The report goes on to recommend:
The role of information in the European Union It is a fairly obvious but fundamental point to make that in a democratic society any organisation, be it at a local, regional, national or international level, which takes decisions which affect individuals and organisations has a duty to inform those affected by the decisions. The nature of the European Union makes it a unique organisation in international law: it is an independent association with its own sovereign rights and a legal system independent of the Member States. The European Union goes further than any other international organisation in the direct impact its policies and laws have on its Member States, on organisations and individuals within the Member States and, indeed, on other countries as well. For this reason the EU has always recognised that it has a responsibility, and in some cases, a legal duty, to make known and explain its laws, actions and policies. In historical terms the European Union is a fairly new actor on the political stage and thus it has, perhaps, an extra need to explain why it was created and what it is doing (a need to gain legitimacy). Thus, the EU has a 'duty' to inform and the citizen has a 'right' to know. A second important point to make is that the number of people who need to know about the policies of the European Union has increased substantially in the last ten years. This is largely in connection with the Single Market Programme and the impact of the Single European Act, which resulted in a significant expansion in legislative action across an increasing number of policy areas. The Maastricht and Amsterdam Treaties further increased the policy competences of the EU. More people and more organisations are now directly affected by EU laws and thus need information about those laws. Whether you are a business person, a lawyer, an accountant, a planner or an official in a local, regional or national authority there will be an increasing European dimension to what you need to know to do your job. Similarly, in education, the European dimension has increased in prominence at most levels of education. The EU has expanded to include new countries, and has a long list of applicant countries and others who maintain or are developing closer economic and political links with the EU. Thus, it is clear that there is a big increase in the number of people, in the EU and elsewhere, who have a real need to know of the activities of the EU. This has an impact on issues relating to the information and communication policy of the European Union. The debate about openness and transparency The late President Mitterand is quoted as saying “We forgot to talk to the people”, when asked to explain why very nearly a majority of the electorate in France who voted in the referendum in 1992 voted to reject ratification of the Maastricht Treaty. That event, combined with the shock of the Danish 'No' in their first referendum in June 1992, the long-drawn discussions in the UK Parliament on ratifying the Maastricht Treaty, and the challenge to the ratification in the German Constitutional Court, brought home to European politicians and officials alike the scepticism of the newly 'Unionised' citizens of Europe about further moves towards European union. The United Kingdom Prime Minister, Tony Blair, said in May 1997
Thus, the question of how effectively the citizens of Europe are informed about what is happening in the European Union has been placed firmly on the political agenda. As a result the EU Institutions and the Member States made a commitment and set a programme to ensure greater openness and transparency of EU activities. Since 1992 there has been a whole series of statements and declarations on this subject, reorganisation of departments responsible for information and communications policies and User Groups and Interinstitutional Committees established. This culminated in the insertion in the treaty agreed at Amsterdam in June 1997 of an amendment to Article A of the TEU:
In addition, the Treaty of Amsterdam introduced a new Article 255 into the EC Treaty which laid down:
The European Commission's proposal for a Regulation launched on 26 January 2000 is its response to the instruction in Paragraph 2 above to introduce 'general principles and limits on grounds of public or private interest governing this right of access to documents' (further details below). Is the EU an open and transparent organisation? The question of access to documents is not the only yardstick of how open the EU is. The traditional opacity of the comitology process and the sheer complexity of the EU policy-making process are also often cited as criticisms. Nevertheless, the issue of access to document has become one of the key issues in the openness debate. There have been a number of legal challenges in the past few years in the European Union relating, in particular, to questions of access to documents from the Council of the European Union and the European Commission. Details of cases brought by The Guardian against the Council in the European Court of Justice and complaints brought to the European Ombudsman by the civil liberties group Statewatch against the Council, plus further related information, can be seen in the Statewatch database. Examples of recent European Court of First Instance judgments in cases relating to access to documents can be seen in the judgments to:
There is now a growing academic literature about the question of access to documents. Contrasting viewpoints can be seen in two papers that have appeared in the series European Integration online Papers. The first by Ulf Öberg is called 'Public access to documents after the entry into force of the Amsterdam treaty: Much ado about nothing?'. The second by Roy W. Davis is called 'Public access to Community documents: a fundamental human right?'. The real challenge in the debate about openness and transparency is to reconcile the needs for democratic openness with the need for operational efficiency in a unique international organisation comprising (at present) fifteen sovereign Member States (and in the future maybe over twenty). Within these countries there are very different traditions relating to these questions. At the centre of the Scandinavian tradition of transparency (transparency through public access) are rules concerning extensive public access to official documents, files and registers which is perceived as an important means of holding public policy-makers accountable. There are other Member States who do not feel comfortable with that tradition, while the EU approach to transparency (transparency through communication) so far has been primarily directed at keeping the public informed of on-going activities by providing 'processed' information. In a recent issue of European Voice (Vol.5, No.33, 16.9.99, p1) it was suggested that the new Commission President was considering publishing the minutes of the Commission's weekly meeting for the first time. Questions which arise are, how long after the meeting will the minutes be issued, and, how much detail will they give (for example will they indicate what specific Commissioners said and will they make clear when disagreements take place. Officials have suggested that the published minutes will not be verbatim reports but rather summaries of what happened: ie. 'processed information'. In the article in European Voice there were two quotations which clearly show the tension between these principles of democratic accountability and operational efficiency:
The existing legislative provisions regarding to access to documents Before going onto look at the Commission's proposed Regulation, and reactions to it, it should be noted that over the last few years the European Commission, Council, European Parliament, plus the majority of other EU Institutions and agencies, have adopted rules on access to documents. The key texts are:
Further sources, including questions submitted by MEPs on the subject, can be found by undertaking a search on CELEX and inserting 'Access to documents' in the 'Words in title' field. A big step forward, in principle, occurred in January 1999 when the Council of the European Union launched its 'Public Register of Council Documents' on the Internet. The Swedish Government called in March 1999 for the European Commission to also set up a register whereby all Commission documents, departmental minutes and papers, invoices and mail would be recorded on a public register, which would be available for public scrutiny. Sweden also proposed that officials who leaked information that failed to appear on these registers should not be threatened with suspension or dismissal ('whistleblowing'). The recent (9/99) Committee of Independent Experts' report on reform in the Commission also said it was important to protect those officials who felt it was their duty to expose wrongdoing. It is expected that the Commission will introduce a Register of documents in due course. The Commission's proposed Regulation Once the Treaty of Amsterdam formally came into force in the spring of 1999 it had been expected that the European Commission would launch a consultation exercise on the legislative proposals it intended to introduce on new legislative guidelines on access to documents, as required by the Treaty. In the event this did not happen, partly because of the turmoil within the European Commission during 1999 and partly, it is suggested, by divisions within the European Commission on the details of the proposals. In particular, the questions of how to define which documents should remain secret and whether papers sent to the Commission from outside bodies should be brought within the coverage of the access rules. In the event the Commission missed out the formal consultation exercise and adopted a proposed regulation on public access to European Parliament, Council and Commission documents on 26 January 2000. This is summarised in Press Release (European Commission), IP/00/75 (26.01.00). Commission President Prodi also dealt with the proposals in a speech he made to an European Parliament Conference of President in Speech (European Commission), SPEECH/00/20 (26.01.00). At the time of compilation of this In Focus the full text of the proposed regulation was not available from an official EU source. However, a copy was accessible on the unofficial Statewatch site. The proposal has to be adopted by the Council and the European Parliament by the Co-decision procedure. The Commission argues that the proposals represent a significant advance on the existing codes of access to documents operating in the three Institutions. The legislation will cover all documents drawn up by the three Institutions or emanating from third parties and in the possession of the Institutions. This is regarded as a major step forward as the current system only covers documents produced by the Institutions. The explanatory memorandum to the proposal attempts to define what the term 'document' means and excludes documents expressing the individual opinions of officials within the Institutions or documents reflecting 'free and frank discussions'. This is in order to allow the Commission (and other Institutions) the 'space to think'. The draft legislation also includes a number of exceptions to the rights of access to documents, intended to safeguard the public interest, respect for personal privacy, commercial, economic or industrial confidentiality, and confidentiality where it is requested by a third party providing information or documents. Note, as a further symbolic gesture, Commission President Prodi announced on the 25 January 2000 the creation of a public register of his correspondence on the Internet. Reaction to the Commission's proposal Generally, reaction was unfavourable: Statewatch - 'Monitoring the state and civil liberties in the European Union' The Greens in the European Parliament Further information within European Sources Online:
Ian Thomson Background and reporting on the week's main stories in the European Union and the wider Europe. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subject Categories | Politics and International Relations | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
