Access to official documents: Parliament 1 – Commission 0

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During December European Parliament (EP) Plenary, the Report on the public access to European Parliament, Council and Commission Documents was adopted by a large majority (394 votes in favour, 197 votes against, 35 abstentions).

The debate on the access to official documents opposes the European Parliament to the Commission and the Council: explications of the ins and outs of a core debate of transparency.

The article 15.3 of the Lisbon Treaty entered into force on December 1st, 2009 specifies: “any citizen of the Union [...] shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium”. Concretely, this aims at ensuring a free access to official documents of European institutions, bodies and agencies (while only the Parliament, the Council and the Commission were concerned until then).

The practical details of the implementation of this disposal divide the Commission and the Parliament. The former considers that no legal framework can be applied to all the EU institutions while according to the latter, the Treaty disposals are directly applicable. The Commission therefore proposed a regulation (COM(2008)0229) meant to make EU legislation in compliance with the Lisbon Treaty. The report (“Cashman Report”, named after its rapporteur) debated in December 2011 in the European Parliament aimed at amending this proposal and underlined the diverging positions of the EU institutions.

Which “documents” are we talking about?

The range of the institutions concerned by this regulation is a first point of disagreement between the Parliament on the one hand, the Commission and the Council on the other hand:

Commission Proposal (COM(2008)0229): public access to European Parliament, Council and Commission documents” (title)

Parliament Report (adopted on December, 15th, 2011): right of access to documents of Union institutions, bodies, offices and agencies” (amendment 1)

The Parliament thus supports a wider accessibility of official documents, what is confirmed by the 12th amendment of the Cashman report: while the Commission calls for “a wider access” (recital 12), the Parliament mentions “a full access”. The opponents of the “full access” (Commission, Council, EPP MEPs) claim that the cost of such a measure is disproportionate in comparison with the gains in terms of transparency and democracy (pushing forward the fact that lobbying offices would benefit from this measure more than citizens would do).

The definition of what a “document” is constitutes another point of dissension:

Commission Proposal (COM(2008)0229):  (a) “document” means any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution; data contained in electronic storage, processing and retrieval systems are documents if they can be extracted in the form of a printout or electronic-format copy using the available tools for the exploitation of the system; (article 3)

Parliament Report (adopted on December, 15th, 2011): (a) “document” shall mean any data content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter falling within the sphere of responsibility of a Union institution, body, office or agency. Data contained in electronic storage, processing and retrieval systems, including external systems used for the institution’s work, constitute a document, notably if they can be extracted using any reasonably available tools for the exploitation of the system concerned. An institution, body, office or agency that intends to create a new electronic storage system, or to substantially change an existing system, shall evaluate the likely impact on the right of access, ensure that the right of access as a fundamental right is guaranteed, and act so as to promote the objective of transparency. The functions for the retrieval of information stored in electronic storage systems shall be adapted in order to satisfy requests from the public; (amendment 30)

The definition of the Parliament is broader than that of the Commission and it includes any institution, body or agency’s production regardless of its format (paper, electronic, audiovisual).

If, following the Commission, the Parliament proposal specifies that there can be exceptions; it adds that these should be strictly controlled and restricted to matters of public security or intellectual property rights, unless there is an “overriding public interest in disclosure”. In addition, the Cashman report calls for a standardisation of the classification of internal documents of all EU institutions so as to make this classification clearer.

According to the NGO access-info.org, the Parliament Report is a good one, for it “strikes the right balance between EU institutions’ “Space to think” and transparency of the legislative process required by the Lisbon Treaty” [1]… But all stakeholders do not agree on this point.

What will this report become?

From the beginning of 2012, it will be the subject of talks between the Parliament, the Commission and the Council so that these three institutions reach an agreement… what will not be an easy task.

In spite of the interest of Danish authorities for transparency issues, the Commission and the Council remain extremely cautious regarding data accessibility. According to Michael Cashman (UK), the rapporteur of this report, the Council is reluctant to go further and does not want to make more effort than those made in 2001. He adds that the Council supports the introduction of a veto on the documents from third parts (ie Member States), what the Parliament report firmly rejects. As for the Commission, Maroš Šefčovič, commissioner for inter-institutional relations and administration, already mentioned during December debate that the Commission couldn’t  accept many of the changes proposed by the report and that an “agreement [risked] taking time”.

The adoption of the Cashman report will not immediately enable a better access to EU official documents, instead it opens a new phase of negotiations between EU institutions. To be continued…

[1] http://www.access-info.org/en/european-union/211-european-parliament-adopts-proposals-t-improve-eu-transparency-rules

[2] http://www.europolitique.info/preprod/le-pe-s-oppose-au-conseil-et-la-commission-c-est-l-impasse-art319405-71.html.

HEARD DURING THE EP DEBATE (12/14/2011):

Michael Cashman (UK), S&D:

What we are talking about is a right that allows citizens and their representatives outside Parliament and the institutions to make sure that we are accountable: parliamentarians accountable for what we do in their name; the Commission accountable for what they do; and equally the Council of Ministers accountable too.

[...] It would also, I believe, destroy the media myth that unpopular measures from Brussels are imposed on national governments, whereas the contrary is true. [...]

Maroš Šefčovič, Vice-president and commissioner for inter-institutional relations and administration:

[T]he regulation is regularly misused by lobbyists or law firms with a view to obtaining information serving their own private interests. As these requests mostly concern very voluminous files – 50 000 pages is not an exception – the Commission considers that the handling of such requests is excessively resource-consuming, with no added value for citizens.

[...]

To sum up the Commission will look carefully at the amendments that will be voted by this Parliament but, let me be very clear, many cannot be accepted by the Commission.

Renate Sommer (DE), PPE:

This report is not in the interest of our citizens. It would cause a flood of useless information. It would make our work impossible and, above all, it is not acceptable to the other institutions because it violates applicable laws and regulations. You know this, Mr rapporteur, and basically you are working towards further transparency and against the citizens.

Hubert Pirker (DE), PPE:

If I were a trafficker of human beings, if I were a terrorist, if I were an enemy of a successful European Parliament, or if I were an opponent of democratic structures and decision-making processes, I would then vote for this report by Michael Cashman. Since I am neither the one nor the other, I am going to vote with conviction against this report.

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