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2008 12 11 * On the reform of Regulation 1049/2001 on public access to documents * Heidi Hautala

http://www.om.fi/en/Etusivu/Ministerio/OikeusasiatEUssa/Seminaronaccesstodocuments/Contributionsoftheseminar


Eduskunta Parliament of Finland                                                                                             Ministry of Justice 


FROM SECRECY TO OPENNESS – AND BACK? 

PANEL DISCUSSION on 11 December 2008 

ON THE REFORM OF REGULATION 1049/2001 ON PUBLIC ACCESS TO DOCUMENTS 


Chairperson’s Report from the Seminar by Ms Heidi Hautala 

A panel discussion on the reform of Regulation 1049/2001 on access to documents held by the EU institutions was organised on 11 December 2008 at the Finnish Permanent Representation to the EU in Brussels (rue de Trèves 100, 1040 Bruxelles). It gathered an audience of more than a hundred interested representatives of the Member States, the EU institutions and different branches of civil society. The seminar was organised jointly by the Parliament of Finland and the Ministry of Justice with the purpose of offering a forum for seeking alternative solutions to the challenges identified by the Commission in its proposal to recast the current Regulation 1049/2001. The seminar was chaired by Ms Heidi Hautala, Chairman of the Legal Affairs Committee in the Parliament of Finland. 

The seminar was opened by Ms Astrid Thors, the Finnish Minister of Migration and European Affairs, who underlined the contribution of the Regulation to the increasing openness of the European Union and welcomed the Commission initiative to further increase openness in the Union through its proposal to recast the Regulation. However, Ms Thors expressed serious concerns about the effect that some of the Commission proposals would have on public access to EU documents, for example as regards the proposal to exclude certain groups of documents, such as documents relating to the Commission’s own inspections, entirely outside the scope of the rules on public access. The justification for this is the need to reduce the workload of the Commission by releasing it from the duty to assess the documents one by one when considering their possible release. But on the contrary, Ms Thors underlined that considering documents one by one is a cornerstone of this legislation. What might be lost with a little bit more work is won by having a good and sound administration. She thanked the Barroso Commission for its other excellent initiatives aimed at increasing citizen participation in EU affairs. Ms Thors also underlined the significant contribution that investigative journalists, advocates, NGOs and researchers – to name a few – make in requesting documents – one by one - and in making the information contained in them available for the public at large and expressed her satisfaction with the Court’s recent judgment in Turco, relating to access to legal service opinions, in which the Court confirmed what we have always believed ought to be the case – that access should be granted to those documents that have an effect on the legislative process. 

The floor was then given to Ms Thors’ Swedish colleague Cecilia Malmström, Minister for EU Affairs, who underlined the crucial importance of openness in modern society and in the fight against corruption. Malmström then focused on documents originating from a Member State, arguing that the legislature had specifically abolished the so-called authorship rule in adopting Regulation 1049/2001 and emphasising that Regulation 1049/2001 does not create an absolute veto for the Member State but a procedural right to be heard. This has been specifically underlined by the ECJ in its recent IFAW ruling. Malmström criticised the Commission proposal for unclear wording in this regard, in particular as regards the right of Member States to justify their refusal by reference to their national legislation. The EU needs more openness, not less, said Malmström. 

The seminar was divided into two parts. 

In the first part a number of general reflections were on offer. 

The Commission proposal was introduced by Mr Marc Maes, Deputy Head of Unit from the European Commission (Directorate for Better Regulation and Institutional Matters) by stating that the Regulation had so far mainly benefited specialists. The Commission aims at improving access by the public at large through improving direct access and including all rules on public access into Regulation 1049/2001. Among the objectives of the Commission is also making Regulation 1049/2001 compatible with the Århus Regulation on access to environmental information. Mr Maes argued that disclosure of written submissions to the Courts under Regulation 1049/2001 would circumvent the Courts' own rules. In relation to documents relating to investigations the Commission proposes, first, a temporary limitation during the investigation or until an act of individual scope is adopted, which in the view of the Commission merely clarifies the existing situation and codifies case law. Second, the Commission proposes a permanent exclusion of information gathered from individuals or undertakings under investigative powers. As regards data protection, the Commission aims at a practical solution that is in line with the Court’s judgment in Bavarian Lager. The definition of a document would remain substantively the same. 

Ian Harden, Secretary General at the Office of the European Ombudsman and his representative at the meeting, then offered the Ombudsman’s view on the ways in which the current Regulation could be improved. Harden underlined that there is no need for fundamental changes, since Regulation 1049/2001 has indeed been a great success. Ways in which it could be further improved are by adding an exception relating to the protection of the environment; defining the relationship between documents and electronic data bases; strengthening the duty of institutions to register their documents; and by reconsidering the concept of overriding public interest, which for various reasons has remained a dead letter. Harden proposed that the Ombudsman could play a role in the procedures under the Regulation. 

Then the focus shifted for a moment on the Council, when Dr Hans Brunmayr, the emeritus Director-General of the General Secretariat of the Council of the EU, provided for an insight into how Regulation 1049/2001 has affected work in the Council. He began by explaining what kind of measures the entry into force of the Regulation had required the Council to take in particular as regards partial access, documents originating from the Member States, sensitive documents, time limits, legislative transparency and the establishment of an electronic register. The main challenge at the moment relates to room documents, which are not necessarily registered. As regards the exceptions established by the Regulation, Dr Brunmayr noted that the greatest doubt regarding the scope of the exception on legal advice had been clarified recently by the Court of Justice in its Turco judgment. In the view of Dr Brunmayr, the Turco ruling, and the subsequent increased access to legal service opinions, does not harm the Council. Dr Brunmayr concluded by stating that he does not see a justification for amending the Regulation from the perspective of the Council, since too much precision and perfection bear the risk of restriction. 

The floor was then given to two Members of the European Parliament, Mr Michael Cashman, Rapporteur on Regulation 1049/2001 and the Commission proposal to reform it (2000-2001 and 2008-) in the LIBE Committee, and by Ms Anneli Jäätteenmäki, draftsperson for the Commission proposal to reform Regulation 1049/2001 in the AFCO Committee (2008-). Mr Cashman underlined that free access to documents is not a "gift" but a right, and said the failure of the Lisbon Treaty in Ireland is an example for what lack of information can lead to, stressing the need for the Council to open up. Mr Cashman also proposed that each department within the EU institutions would have an information officer who could face sanctions if his or her directorate did not comply with the regulation granting access to information. His report will be voted upon by the plenary in March 2009. Thereafter the Commission will be asked to re-table its proposal. 

Ms Jäätteenmäki underlined the importance of increasing the openness of legislative procedures. According to Ms Jäätteenmäki, a political system can be legitimate only if the citizens can trust it. If the citizens are unable to get information on what has been decided, who has made the decision and on which premises there can be no trust. She referred in this respect to the argumentation of the ECJ in the Turco case. In the same case, the Council had expressed fears that disclosure of the legal opinions could lead to doubts as to the lawfulness of the legislative act, because 'outsiders' could use these internal opinions to question the legality of the Council acts. Maybe it would have been better if this Council opinion wouldn't have been accessible to the public, because it gives such an arrogant view of the decision makers, Jäätteenmäki said. 

The academic community was represented by Professor Steve Peers from the University of Essex, who focused on the “core elements of the Commission proposal”. According to Professor Peers, the most central problems with the Commission proposal include the definition of a document, limitations of the scope of the Regulation, data protection and Member State veto, which all contribute to lowering the current standard. Professor Peers underlined that with its proposal the Commission is not consolidating case law (including the recent rulings in IFAW, Bavarian Lager, API, VKI and TGI) but aiming at reversing it. As regards disclosure of written submissions to the Courts, Peers said he would much prefer the Commission proposing an update of the rules implemented by the Court rather than limiting the scope of access under Regulation 1049/2001. Peers reminded that the Treaty of Lisbon presumes a more active policy on access to documents. He concluded by stating that the Regulation ought to be specified to define that the exceptions relating to the protection of the decision-making process cannot be used to protect the legislative procedure. 

In the second part a number of key elements of the Commission proposal were addressed. First, Mr Tony Bunyan, Director and Editor of Statewatch, discussed the new definition proposed by the Commission for a “document”, which lies at the core of the Regulation. He started by stating that while it is positive that 75% of documents become publicly available, it is a source of grave concern that 25% of them are not. Mr Bunyan underlined that the current definition has been largely unchanged for 15 years and enjoys wide support. He wondered what had caused the Commission propose a new definition at such a late stage of its preparatory process and argued that the timing of the proposal linked it to a recent decision by the European Ombudsman where the Ombudsman had underlined the duty of all institutions to include all their documents in a public register and criticised the Commission for a failure to do so. In addition, Mr Bunyan referred to the practice of blanking out the positions of third states from released documents; a practice he found unjustified in case those positions affect EU decision-making. 

Following this, Mr Onno Brouwer, Partner at Freshfields Bruckhaus Deringer, and a frequently seen lawyer at the Court hearings of cases relating to the implementation of Regulation 1049/2001, spoke about the “Protection of legal advice after Turco”. Mr Brouwer underlined the responsibility of a practitioner like himself in deciding which cases ought to be settled by the Court, since “bad cases make bad law”. In his view, Turco was an excellent case since the public interest in releasing the document in question could not be doubted, and stressed the importance of Member State interventions. Brouwer also reminded about the importance of the Ombudsman. According to Brouwer, the Court established in Turco a three-stage-procedure for evaluating the release of documents containing legal advice. First, it needs to be established that the document contains legal advice. Second, it needs to be demonstrated that the document in question could indeed undermine the protection of that advice, and that the risk is reasonably foreseeable and not purely hypothetical. Third, it needs to be evaluated whether there is any overriding public interest justifying disclosure; a consideration that is of particular relevance when Council is acting in its legislative capacity. Mr Brouwer concluded by arguing that these findings should by no means impede the Council legal service from offering written legal advice when needed. 

Finally, Mr Peter Hustinx, European Data Protection Supervisor, discussed the relationship between public access on one hand, and data protection and privacy on the other hand. According to Mr Hustinx, the current Regulation 1049/2001 strikes the right balance between the two rights to be protected; a balance that was correctly maintained by the Court of First Instance in its recent ruling in Bavarian Lager, of which 90% corresponds to the reading of the EDPS. Mr Hustinx underlined that the concepts of protection of data and protection of privacy are by no means identical, and that not all release of personal data is harmful to the privacy of a person. Mr Hustinx concluded with the observation that many requests for access to a document under Regulation 1049/2001 are, in fact, applications to the personal data of the applicant, and proposed placing the institutions under a duty to inform the applicant about his or her possibilities to apply for the relevant information under the data protection Regulation 45/2001. 

In the discussion that followed questions about access to documents held in databases were raised, stressing that as long as there are no clear rules on the topic, information contained in databases risked to be excluded from the scope of public access. Moreover, it was pointed out that information loses its value very quickly, and in this respect the length of the process is of grave concern. Mr Cashman agreed that the question relating to data bases ought to be clarified. Mr Maes indicated that the Commission is aware of the opinion of the European Data Protection Supervisor but argues for a more well-balanced approach between the two rights. As regards legal service opinions the Commission is looking into the question relating to the relevance of the ruling for the opinions of its own legal service. The Commission denied the connection between the new definition of a document and the question of registers. For the Commission, reference to national legislation does not re-constitute Member State veto. Mr Harden noted the existence of a connection between the exception relating to the protection of the environment and Member State documents, and expressed his support for the initiative of Mr Hustinx relating to the duty of the institutions to inform the applicants about their rights under Regulation 45/2001. Dr Brunmayr stated that many of the arguments used in Turco were, in fact, more political than legal in nature, but repeated that the negative impact of the Court’s reading on the Council was marginal. He stressed the effect of the ruling on promoting transparency. Dr Brunmayr stated that the EU’s relations to third states would be seriously harmed if the positions of the latter were released. Professor Peers stressed that as regards Court documents the Commission proposes a categorical exception which eliminates the possibilities of implementing a harm test. In relation to Member State documents the Commission proposal would lower the current standard. Mr Bunyan returned to the question of releasing US negotiating positions and their effect on EU internal rule-making. Mr Brouwer underlined the importance of defining a ”document” and its link to modern society. Mr Hustinx argued for a balancing test between Regulation 1049/2001 and data protection and discussed briefly the possibility of requesting consent for the release of information. 

Concluding remarks for the seminar were offered by Mr Jacob Söderman, Vice-Chairman of the Constitutional Law Committee in the Parliament of Finland and the first European Ombudsman (1995-2003). Mr Söderman said the panel had shed new light on the different views and aspects of the current reform of the Regulation on public access to documents. Much progress in transparency had been achieved since 1995. Mr Söderman underlined the role of the Courts in upholding the law on transparency in the Community institutions, in laying down some of the true corner stones on the way towards a good and sound administration, open and accountable to its citizens of the European Union – advances that now risk to be watered down to the disadvantage of the European citizens and in the end of the European Union itself. Mr Söderman appealed to those present to not make such proposals existing law. While initiatives to ease the administrative burden of the institutions were in general to be supported, these should acknowledge that the principle of transparency, of open governance, is the general principle and the secretive dealing with administrative affairs is an exception, only to be applied in a strict manner where access is duly restricted by law for good reasons. Mr Söderman concluded by underlining the close linkage between access to documents, on the one hand, and people’s right to know, to control the public administration set to serve them and, furthermore, to have the possibility to publicly discuss important issues based on relevant information and correct facts, on the other. At the very end it is a must for the citizens' right to exercise their freedom of speech, which might be one of the most important human rights in our modern world - at last when we are looking for the truth. 

The seminar contributions are available at http://www.om.fi/en/Etusivu/Ministerio/OikeusasiatEUssa/Seminaronaccesstodocuments